Peters v. Chas. Schuessler & Sons , 208 Ala. 627 ( 1923 )

Appellees move the court to dismiss the appeal for that (1) no security for costs of the appeal has been given by appellant; that (2) the decree appealed from is not such as is defined by the act of September 22, 1915, from which appeal may be taken by a married woman without giving security for costs of the appeal; (3) that no security for costs or supersedeas bond has been given; and (4) the appeal was not taken within the time required by law.

The provisions of the act of September 22, 1915, exempting married women from giving such security, are: (1) from any judgment, order, or decree of any court of record subjecting to sale or condemnation any property of or for the payment of money, (2) or the doing or performing any act by any married woman. Acts 1915, p. 715. It is apparent the instant decree sought to be appealed from makes neither of the requirements of a married woman specified by the statute. The several applications of the statute (Acts 1915, p. 715, No. 650) are: Pollard v. Jackson, 204 Ala. 31, 85 So. 431, where the decree was that of confirmation of the sale of land; Kimball v. Cunningham Hardware Co., 201 Ala. 409, 78 So. 787, where the party seeking to appeal was held not to be a married woman that was entitled to exemptions (premiums paid for insurance on life of husband) from liability from the debts of the husband under section 4502 of the Code, and was not a "married woman" within the purview of section 2879 of the Code amended by Acts of 1915, p. 715; and Cole v. Law, 200 Ala. 697, 76 So. 995. Referring to the original record in Cole v. Law, supra, it is shown that the register in chancery had certified the appeal in Mary Cole et al. v. Malinda Law et al., from a final decree in favor of respondents, and in which there was also a decree of denial of a motion for rehearing. Motion was made in this court to dismiss the appeal for the failure to perfect the same as required by statute, and it was agreed by the respective counsel that the "motion correctly states the facts in regard to the nature of the proceeding in the court below, and in regard to the steps taken to perfect appeal taken to the Supreme Court." The facts admitted to be true, and given statement in the motion, are:

"That appellants and others were complainants in a bill in the chancery court * * * against Malinda R. Law and others * * * to quiet the title to 120 acres of land, and to cancel certain deeds thereto. The issues involved in the cause were as to whether or not two certain deeds were invalid, void or voidable on account of mental incapacity of the grantor therein, Nathan Cole, now dead, and also as to whether or not such deed should be set aside on account of fraud alleged to have been perpetrated on said grantor by or for the person under whom appellees claim title. The decree of the chancellor denied relief prayed by the complainants, and dismissed their bill of complaint, and taxed the costs of the cause against the complainants." That "Mary Cole, widow of Nathan Cole, and Elizabeth Walker, daughter of Nathan Cole, who is a married woman, filed in proper form their affidavits of appeal under section 2879 of the Code as amended by General Acts of 1915, p. 715, setting up in their affidavits that one of them is a widow and the other is a married woman, and each of them setting up further that she is unable to give security for costs of appeal and that as provided by said sections of the Code she is entitled to take and perfect and prosecute her appeal as provided by said section of the Code as amended," and upon such facts moved the court "to dismiss the appeal so taken or purporting to have been taken, etc."

The judgment on the motion was that "unless the appellants give security for costs within 60 days from May 10, 1917, the appeal be dismissed"; that "the court is of the opinion that Acts 1915, p. 715, amending section 2879. Code 1907, does not apply to this appeal." The time for appeal had not elapsed.

The instant decree was of date of January 14, 1922, and the prayer for or attempted perfection of the appeal was of date of July 6, 1921. Demurrer had been repeatedly sustained to the bill and amendment sought on terms. After last demurrer to the bill as amended, it was sustained, further time given for amendment upon payments of costs, bill as amended refiled, and there was a motion to strike the "substituted bill as amended," and the motion was granted and complainant ordered to pay the costs incident to the motion. There was a petition for setting aside this decree or to open the decree, and the motion of respondent to strike from the file the bill as amended was sustained and the bill was stricken from the file, and complainant ordered "to pay the costs incident to said motion for which execution may issue." This was a final decree from which an appeal may have been prosecuted within the time prescribed by statute. Acts 1915, p. 711; section 2837, Code; Pepper v. Horn, 197 Ala. 395, 73 So. 46; State ex rel. Wright v. Kemp, 205 Ala. 201, 87 So. 836; Schwarz, Rosenbaum Co. v. Barley, 142 Ala. 439, 38 So. 119.

An appeal is taken only within the provisions of the statute, one of which was the filing with the proper officer sufficient security for the costs of the appeal. Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363; Kimbrell v. Rogers,90 Ala. 339, 343, 7 So. 241. This was not done and the time has elapsed.

For the failure to perfect the appeal by giving the required security for costs and as required by statute (Acts 1915, p. 711), appellees' motion is granted, and the appeal is dismissed.

Appeal dismissed.

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