Parten v. Compton

BEATTY, Justice.

Our directions issued on January 27, 1978 in Parten v. Compton, Ala., 355 So.2d 694 (1978) were as follows:

Accordingly, we remand this case to the circuit court with directions to that court to make findings on the factual issue pertaining to the filing of the notice of appeal, and to establish a supplemental record. .

The trial court has responded as follows:

FINDINGS OF FACTS AND SUPPLEMENTAL RECORD

Heretofore, the Supreme Court of Alabama in ARTHUR C. PARTEN, et al, versus LEWIS H. COMPTON, S.C. 2537, Ordered the Circuit Court of Choctaw County “to make findings of the factual issue pertaining to the filing of the Notice of Appeal, and to establish a supplemental record.” Thereafter, a hearing was had on the 11th day of April, 1979, and testimony and evidence having been presented at said hearing, and brief having been furnished the Court by the attorney for the proponent and the same being considered and understood, the Court makes the following findings of facts:

1. That the attorney for the contestants filed a timely Motion for New Trial on November 12, 1976;

2. That on February 11,1977, Honorable WYMAN 0. GILMORE, the attorney for the contestants, placed a Notice of Appeal on the counter in the office of the circuit clerk of Choctaw County, Alabama. No copies of the said Notice of Appeal were marked filed with the date of filing noted thereon nor were any copies of said Notice of Appeal served on any attorney for the proponent or personally on the proponent, Lewis H. Compton. That on said date, Mr. Gilmore did not pay a docket fee in the amount of Twenty-Five Dollars ($25.00) to anyone in the office of the Circuit Clerk of Choctaw County, Alabama;

3. That Mildred N. Womble, Official Court Reporter, First Judicial Circuit of Alabama, filed a Certificate of Completion of “Reporter’s Transcript” in the office of the Circuit Clerk of Choctaw County, Alabama, on the 25th day of February, 1977;

4. That on the 1st day of April, 1977, Honorable Wyman 0. Gilmore communicated by telephone with Honorable William L. Utsey, an attorney-at-law in Butler, Alabama, concerning the appeal in this cause, and after Mr. Utsey examined the court file, the post-judgment proceedings of which were filed in the office of the Judge of Probate of Choctaw County, Mr. Utsey notified Mr. Gilmore that the file did not contain any Notice of Appeal;

5. That there was then a Notice of Appeal to the Supreme Court of Alabama filed in this cause on the 1st day of April, 1977, by the contestants, which said Notice was dated later than forty-two (42) days after the denial by operation of law .of the Motion for a New Trial;

6. That the said docketing fee for the Notice of Appeal was paid later than the forty-two (42) days after the denial by operation of law of the Motion for a New Trial;

7. That the Court finds there was not a timely filing of the Notice of Appeal within the purview of Ex Parte Cunningham, 19 Ala.App. 584, 99 So. 834 (1924);

8.That the Court appointed Honorable D. P. Scurlock, III, as a guardian ad litem in this cause for the hearing to establish a supplemental record, and the Court awards as a fee the sum of Three Hundred Fifty Dollars ($350.00) to said guardian ad litem for his representation herein.

Done and Ordered this the 2nd day of November, 1979.

/s/ Hardie B. Kimbrough Hardie B. Kimbrough, Presiding Judge First Judicial Circuit of Alabama

Based on the findings of the trial court, we have no alternative but to dismiss the appeal.

APPEAL DISMISSED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.