Winthrow v. Woodward Iron Co. , 81 Ala. 100 ( 1886 )

Per Curiam.-

— -The motion made is to dismiss the appeal on the ground that the transcript of the record was not filed during the term of this court to which the appeal was taken, and that this fact operated as a discontinuance of the cause. The judgment was rendered, in the court below, in October, 1885. The appeal was taken in March, 1886, returnable to the first Tuesday in June, 1886, — a term of this court which ended on July 31st, 1886. -The transcript was not filed until December 17th, 1886, or the next ensuing term of this court. The motion to dismiss was made on the same day the transcript was filed.

It is the opinion of the court that the motion to dismiss must be sustained on the authority of the case of Sears v. Kirksey, decided at the present term, from which it can not be distinguished on any sound principle.

For thirty years prior to the passage of the act of February 18th, 1867, now embraced in section 3953 of the present Code, 1876, it was the established practice in this State, supported by very many decisions of this court, that an appeal was discontinued by a failure to file the transcript at the term to which it was taken, without any action on the part of the court, or any motion made for a discontinuance. As said in Carleton v. Goodwin, 41 Ala. 153, “ in contemplation of law, the mere failure to file a transcript at the i eturn term, in the absence of an affirmance on certificate, ipso facto disposes of and destroys an appeal. It requires no formal discontinuance in court, or order of court, to consummate the death or discontinuance.” — Hayden v. United States, 4 Porter, 393 ; Roebuck v. Dupuy, 2 Ala. 352; Owen v. Echols, 28 Ala. 689.

To obviate the hardship of this principle, the act of February 18th, 1867, was passed. As embodied in section 3953 of the present Code, it reads as follows: “No undecided appeal to the Supreme Court must be deemed or treated as discontinued, or as having otherwise lost its force, unless the appellee shall duly move for a discontinuance, after legal cause for discontinuance has occurred.” In Sears v. Kirksey, supra, we decided : (1.) That this statute modified the oíd rule so far only as to make the failure to file a transcript at the return term a legal cause for discontinuance, and not ipso facto a discontinuance. (2.) That the objection must be asserted by motion on the part of the appellee, made with due diligence. (3.) That the earliest practicable moment at which such a motion can be made is at the term at which the transcript is filed.

We have re-examined the grounds of these conclusions, and are fully satisfied with them. Nor can we see any distinction between an appeal taken generally to any term of this court, and one returnable to the first Tuesday of any month of such term under section 3925 of the Code. The appellant having elected to take his appeal to a specified term, is bound by the result of such election. The principle still binds him that if he lets that term lapse without filing the transcript, or docketing the cause and asking for a certiorari, this negligence on his part becomes a ground for discontinuance, provided the appellee move for it with due diligence.

The motion to dismiss is sustained.