Opinion
2 Div. 288.
June 17, 1924.
Appeal from Circuit Court, Choctaw County; Claude A. Grayson, Judge.
Action by D.M. Boswell against J.T. Linder. Judgment for defendant, and plaintiff appeals. Appeal dismissed.
D.M. Boswell, of York, in pro. per.
In view of the opinion it is not necessary that brief be here set out.
Gray Dansby, of Butler, for appellee.
No brief reached the Reporter.
In this cause appellee appears specially for the sole purpose of making a motion to dismiss this appeal, on the ground of a noncompliance with the statute, which requires that a citation of appeal must not only issue, but must be served upon appellee or his attorney at least 10 days before the day to which the appeal is returnable.
Section 2881 of the Code of 1907 provides:
"Upon an appeal being taken, the * * * clerk of the circuit * * * court, * * * must issue a citation to the adverse party, returnable to the day to which the appeal is returnable, notifying him of the appeal, which must be served on him, or his attorney, * * * at least ten days (unless otherwise provided) before the day to which the appeal is returnable."
An examination of the record fails to show any service upon the appellee or his attorneys. Moreover, there has been filed in this court an affidavit of the appellee, and each of his attorneys in this cause, to the effect that no citation of appeal, nor any notice of appeal, nor brief of appellant in this cause, has been served on either of them. For failure to serve appellee or his attorneys with a citation of appeal, as the statute requires, the motion to dismiss the appeal must be granted. Frierson v. Haley, 1 Ala. App. 576, 55 So. 429.
Appeal dismissed.