Murphy v. Wood , 103 Ala. 638 ( 1893 )

COLEMAN, J.

On the 21st of January, 1893, the plaintiff, Murphy, obtained a judgment in the justice court against the defendant, Wood. On the 23d day of January, 1893, the defendant Wood filed an appeal bond and obtained an appeal from the judgment in the justice court to the circuit court.

We know judicially that the January term of the circuit court for Montgomery began on the 9bh day of January, 1893, and the record informs us that the court was duly organized on that day, just two weeks before the appeal from the justice court was taken. The circuit court rendered judgment, dismissing the appeal, for want of prosecution. The present appeal is prosecuted from the judgment of the circuit court, dismissing the appeal. The record does not inform us of the date of the judgment of the circuit court, dismissing the appeal. We mention here, for the benefit of clerks and registers, that in making out records for appeals, the date of the filing of pleadings, orders, judgment and decrees, should be stated. Section 3403 of the Code is as follows : “Notice of appeal to be served on appellee. The justice must also issue a notice to the appellee that such appeal has been taken, which must be executed by personal service on him, his agent or attorney, five days before the return term of the appeal, and must be returned by the constable to the clerk of the court to which the appeal was taken, on or before the second day of the term.”

There was no evidence in the record that notice was given to Murphy of the appeal, or that he had notice of it. The statement by the justice of the peace on his docket, “notice of appeal given to the plaintiff,” refers only to the duty required of him, “that he issue a notice to the appellee that an appeal has been taken,” but is not evidence of the service of the notice which must be executed “five days before the return term of the appeal and must be returned by the constable to the clerk of the court to which the appeal was taken, on or before the second day of the term.” The constable makes this return to the clerk of the court to which the appeal is taken, and not to the justice of the peace. The case of Kane v. Gammell, 50 Ala. 492,is directly in point, if any authority was necessary to sustain the contention of appellant, that the court erred in dismissing the suit for want of prosecution.

Reversed and remanded.