Coker v. Fountain , 200 Ala. 95 ( 1917 )

This cause was submitted on motion to dismiss the appeal, as well as on the merits. One of the grounds of the motion is that the appeal was not taken within the time prescribed by the statute. The judgment in this cause was rendered April 7, 1915, and the appeal taken November 11, 1915. The act of September 22, 1915 (General Acts 1915, p. 711), provides as follows:

"That any appeal taken under the provisions of chapter fifty-three (53) of the Code of Alabama of 1907, must be taken within six months from the rendition of the judgment or decree."

In Mazange v. Slocum Henderson, 23 Ala. 668, it was held that an appeal was a new proceeding, "the commencement of proceedings in this court to revise the final action in the court below, and cannot be regarded as the continuation of proceedings in the primary court."

This court has further uniformly held that appeals are entirely of statutory creation. Ex parte Jonas, 186 Ala. 567,64 So. 960.

In Poull Co. v. Foy-Hays Const. Co., 159 Ala. 453,48 So. 785, it was also held that an appeal was a part of the remedy and not a vested right. The authorities therein cited fully sustain the holding, particularly the case of R. R. Co. v. Grant, 98 U.S. 398, 25 L. Ed. 231.

Being a remedy of purely statutory creation, it was a matter entirely within the legislative control, and the Poull Case, supra, clearly demonstrates that but for section 10 of the Code, the motion to dismiss the appeal would have prevailed.

The question is one involving the jurisdiction of the court, and in R. R. Co. v. Grant, supra, it was said:

"It is equally well settled that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law."

In the Poull Case, supra, the opinion cites Elliott's Appellate Procedure, § 76, which fully sustains the conclusion there stated. See, also, note 1, to said section, wherein is cited, among other authorities, Ex parte McCardle, 7 Wall. 506,19 L. Ed. 264.

We have recently had this same question presented in Tenn. River Navigation Co. v. Grantland, 199 Ala. 674, 75 So. 283 (present term), which is decisive of this motion.

The appeal here was prosecuted more than a month after the passage of the act of September 22, 1915, and much more than six months from the rendition of the judgment. The act of September 22, 1915, contained no saving clause.

Under the authorities of this court, therefore, the appeal was not taken within the time allowed by law, and the motion to dismiss the same must prevail.

Appeal dismissed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.