Alabama Coal & Navigation Co. v. State , 54 Ala. 36 ( 1875 )

STONE, J.

In chapter 1, title 5, part 3, of the Revised Code, are the following provisions:

Section 3485: From any final judgment or decree of the chancery, circuit or pyobate courts, except in such cases as are otherwise directed by law, an appeal lies to the Supreme Court, for the examination thereof, as matter of right,” &e. Section 3508: “Appeals under this title, except in such cases as a different time is prescribed, must be taken within two years from the rendition of the judgment or decree,” <&c.

It will be observed that the class of appeals provided for in the sections copied above, does not embrace cases for which other provision is made by law, and that the limitation of two years is confined to appeals under title 5, supra, and to cases in which a different time is not prescribed.

The proceedings from which the present appeal is prosecuted, were instituted under chapter 5, title 2, part 3, Revised Code. In that chapter is the following section:

§ 3098. “ The informant or defendant may appeal to the Supreme Court within ten days after judgment, on application to the clerk, and giving security for the costs of the appeal,” &e.

We think it too clear to admit qf argument that this case does not come within the provisions of sections 3485 and 3508 of the Revised Code. It does not fall within the provisions of title 5, and a different time is prescribed within which to take the appeal. We hold that in this ease the appeal was barred, unless taken within ten days, under section 3098 of the Devised Code.

We cannot assent to the argument that the adjournment of the court defines the time from which the ten days begin to run, within which the appeal must be taken. “Within ten days after judgment,” is the language of the statute. This language is explicit. If the legislature had intended that the ten days should commence running at the adjournment of the court, nothing was easier, or more natural, than that they should have said so. They employed other language, and we must conform to their declared will. Under our system, a term of the court is not regarded as one day. Each day has its separate duties; and this court will consult the record, that it may determine whether action in the primary court was premature,—See 1 Brick. Dig. 777, §§ 44, 45; Teat v. Cocke, 42 Ala. 336; Ex-parte Pollard, 40 Ala. 77.

Formerly, there were statutes of force in this State which were construed as giving to judgments a lien on lands of the defendant from their date. In the rulings under those statutes, the term was not considered as one day, but the precise day of the term on which the judgment was rendered, was declared to be the time when the lien of the judgment attached.—See Pope v. Brandon, 2 Stew. 408; Morris v. Ellis, 3 Ala. 562; Campbell v. Spence, 4 Ala. 548; Mansony v. U. S. Bank, Id. 749; Quinn v. Wiswall, 7 Ala. 649; Bliss v. Watkins, 16 Ala. 231; Pearson v. Darrington, 21 Ala. 174; Holtzclaw v. Ware, 34 Ala. 307.

The day on which the judgment was rendered, and not the day on which the judgment entry of the clerk was corrected, is the time from which the ten days must be computed.—See Pearson v. Darrington, supra; Moore v. Howe, 5 Ala. 234; Cunningham v. Fontaine, 25 Ala. 644; Dow v. Whitman, 36 Ala. 604; Ware v. Brewer, 34 Ala. 114.

Appeal dismissed.