Opinion
7 Div. 870.
March 28, 1946.
Appeal from Circuit Court, Shelby County; W. W. Wallace, Judge.
Proceeding by Lula Hill Barnett and others against Estelle Crumpton and others to test the validity of claims against the estate of W. H. Templin, deceased. From a decree allowing claims of respondents, complainants appeal and appellees move to dismiss the appeal.
Appeal dismissed.
S. A. Lokey, of Columbiana, for appellants.
Section 216, Title 61 of the Code, as amended, does not alone control the appeal in this case, but must be construed in pari materia with other statutes.
Code, Tit. 7, §§ 754, 766, 767, 788, 801, 806; Clobert Co. v. Tenn. Valley Bank, 225 Ala. 632, 144 So. 803.
Bond is not jurisdictional and is sufficient if an approved bond accompanies the case in the Supreme Court. 3 Am.Jur. 172, 180, §§ 483, 502-3; Murphy v. Freeman, 200 Ala. 634, 127 So. 199, 70 A.L.R. 381; Riddlesperger v. Williams, 226 Ala. 619, 148 So. 323; Pitsch v. Cont. C. Bank, 305 Ill. 265, 137 N.E. 198, 25 A.L.R. 164.
Paul O. Luck, of Columbiana, for appellees.
Appeal in this cause is governed by Code 1940, Tit. 61, § 216, as amended, to be taken within 30 days as other appeals are taken. And it is required that appellant give notice and security for costs, under Code Tit. 7, § 766. An appeal is perfected only when a good and sufficient security for costs of appeal is filed. This appeal not having been perfected within the time fixed by the statute, it should be dismissed. Journequin v. Land, 235 Ala. 29, 177 So. 132; Irwin v. Weil, 228 Ala. 489, 153 So. 746; Thompson v. Menefee, 218 Ala. 332, 118 So. 587, 589; Cheairs v. Osborn, 26 Ala. App. 362, 159 So. 702; Jacobs v. Goodwater Graph Co., 205 Ala. 112, 87 So. 363; Liverpool, c. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Peters v. Schuessler, 208 Ala. 627, 95 So. 26; Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Carlisle v. Carmichael, 222 Ala. 182, 131 So. 445; Dodd v. Carnes, 207 Ala. 367, 92 So. 428; Walden v. Leach, 201 Ala. 475, 78 So. 381; Wallace v. Folmar, 215 Ala. 246, 110 So. 402.
The appeal is from a decree rendered November 7, 1945, determining the question of the validity of certain claims filed against the estate of W. H. Templin, deceased, the administration of said estate having been removed from the Probate Court to the Circuit Court of Shelby County, in Equity. The proceedings were governed by the provisions of Sec. 216, Title 61, Code 1940, as amended by the act of July, 1943, now appearing as Sec. 216, Title 61, Code 1940, Cumulative Pocket Parts.
Motion of appellees to dismiss this appeal is rested upon the theory the appeal was not taken within the period of thirty days, as prescribed by the above-cited statute. The motion is well taken. The decree, as above noted, was rendered November 7, 1945. Bond for the appeal (here required) was filed and approved December 28, 1945. Our decisions are uniform to the effect that the appeal is perfected only when a good and sufficient security for costs of such appeal is filed. The case of Journequin v. Land, 235 Ala. 29, 177 So. 132, is directly in point and fully supported by the authorities cited therein.
We are unable to see that this ruling in any manner runs counter to any provision of Sections 754, 766, 767, 788, 801, 806, Title 7, Code 1940, cited by appellants, each of which we have carefully considered. And the argument advanced, that notice of an appeal given within the thirty day period would suffice, is likewise answered by the above-cited authority, wherein is the following observation: "Neither notation of an appeal on the docket, nor a notice of appeal filed in the cause, meets the requirement of our statute."
But we forego further discussion. It is to our mind clear enough the appeal was not taken within the time prescribed by the statute and must be dismissed. It is so ordered.
Appeal dismissed.
FOSTER, LAWSON, and STAKELY, JJ., concur.