Colquett v. Williams , 264 Ala. 214 ( 1956 )

MERRILL, Justice.

This is an appeal from a judgment of the Circuit Court of Covington County in the sum of $12,000 damages for personal injuries, which was rendered in favor of appellee, plaintiff below. The cause was submitted on motion to dismiss the appeal and on the merits.

On the motion.

Appellee moves that the transcript of the record be stricken because it was not filed in compliance with Rule 37, Revised Rules, which rule, as applicable here, provides:

“* * * the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below.” The ground for appellee’s motion is that the transcript of the evidence was filed on June 27, 1955 and more than 60 days elapsed before the transcript of the record was filed in this court on September 2, 1955.

On July 5, 1955, appellants filed objections to the transcript of the evidence and to the record. With the objections was a motion to correct the record by adding certain alleged omitted matter. On July 6th, the court ordered the clerk to include certain specified matter in the transcript, and on July 8th, ordered the court reporter to certify certain additional proceedings, and at the same time denied appellants’ motion to have incorporated in the record the argument of appellee’s counsel to the jury.

That part of the act which is listed in the 1953 cumulative pocket part, Code of Alabama 1940, as Title 7, § 827(la) provides :

“The period of time within which the reporter must file the transcript may be extended by the trial court for cause. Within ten (10) days after the filing with the clerk of the certified transcript by the court reporter, either party may file with the clerk objections to the certified transcript, with his certificate that he has notified the opposing party, or attorney of record, that the same will be called to the attention of the trial court at a specified time and place. If no objections are filed within such ten (10) days the transcript shall be conclusively presumed to be correct. The hearing of objections and the ruling of the court thereon shall he concluded within a period of ninety (90) days from the date of the taking of the appeal, provided that this period may be extended by the trial court for cause. The trial court shall endorse its ruling on the transcript, sign the same, all within said ninety (90) days period, except as hereinbefore provided. Any ruling of the trial court upon such requested hearing, as well as any ruling on objections to a succinct statement, provided for in section 827(3) of this title, shall be reviewable, with error duly assigned by the dissatisfied party upon the appeal of the cause, and the evidence upon such hearing shall be duly certified by the court reporter.”

The apparent effect of this section is to extend the time in which the transcript must be filed. There is no conflict with Rule 37 because the transcript of the evidence was not established until the expiration of the ten day period, in which either party may interpose objections to the certified transcript. The transcript was not established until July 8,. 1955 when the court ruled on the objections to the transcript of the evidence. The transcript of the record was filed in this court within sixty days after July 8; therefore appellee’s motion to dismiss the appeal is without merit and is due to be, and is, denied.