Opinion
6 Div. 592.
January 29, 1931.
Wilkinson Burton and Hollis O. Black, all of Birmingham, for movant (appellant).
Sections 6153 and 8565 of the Code of 1923 are inapplicable to municipal corporations, because they are neither expressly included within their terms nor included by necessary implication. 5 McQuilin, Mun. Corp. 5135; Moore v. Tunica County, 143 Miss. 839, 108 So. 900; Sawyer v. Colgan, 102 Cal. 283, 36 P. 580, 834; 25 R. C. L. 783; 36 Cyc. 1171; City of Jackson v. State, 156 Miss. 306, 126 So. 2; Inhabitants of Whiting v. Inhabitants of Lubec, 121 Me. 121, 115 A. 896; Collier v. Powell, 23 Ala. 579; State ex rel. Lott v. Brewer, 64 Ala. 287; Mayor, etc., of City of Mobile v. Rowland, 26 Ala. 498; Holmes v. City of Mattoon, 111 Ill. 27, 53 Am. Rep. 602; Schuyler County v. County of Mercer, 4 Gilman (9 Ill.) 20. There being no surety on its bond, appellant does not fall within the letter of the statute, which is strictly construed. Morrow v. Rosenstihl Bros., 106 Ala. 198, 17 So. 608; Tillman v. Wood, 58 Ala. 578; Dawson v. Matthews, 105 Ala. 485, 17 So. 19; Dent v. State, 42 Ala. 514.
Robert J. Wheeler and Marvin Woodall, both of Birmingham, for appellee.
Sections 6153 and 1900 of the Code of 1923 must be construed together. Thereunder a municipality may appeal by giving bond without surety and is liable for the penalty on affirmance. A municipality must comply with general statutory provisions as to perfecting an appeal, except as specifically relieved, and is subject to rules as to judgments generally in civil actions. City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; City Counsel of Sheffield v. Harris, 101 Ala. 564, 14 So. 357; Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; 44 C. J. 1490, 1494; 3 C. J. 658; State, Use of Fayette County, v. Earnest, 123 Ala. 631, 26 So. 948; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174; City Council of Montgomery v. Foster, 54 Ala. 62; Randolph County v. Hutchins, 46 Ala. 397; Ijams Carr v. Rice, 17 Ala. 404. The statute imposing the penalty is to deter frivolous appeals. The penalty becomes an integral part of the judgment. Montgomery Light Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; 15 C. J. 280; Little Cahaba Coal Co. v. Ætna Life Ins. Co., 192 Ala. 42, 68 So. 317, Ann. Cas. 1917D, 863. Appeals are not matter of right, but only as allowed by statute. Stoutz v. Huger, 107 Ala. 248, 18 So. 126; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803. Costs of suit under Alabama statute is penalty imposed on unsuccessful party. Northern v. Hanners, 121 Ala. 587, 25 So. 817, 77 Am. St. Rep. 74; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; Code 1923, §§ 7221, 7255.
Harry Ross Simmons had judgment against the city of Birmingham in an action for damages for personal injury, and defendant appealed to the Supreme Court, where the following judgment was entered:
"Come the parties by attorneys, and the record and matters therein assigned for errors, being argued and submitted and duly examined and understood by the court, it is considered that in the record and proceedings of the Circuit Court there is no error. It is therefore considered that the judgment of the Circuit Court be in all things affirmed. It is also considered that the appellant pay the amount of the judgment of the Circuit Court and 10% damages thereon and interest and the costs of appeal of this Court and of the Circuit Court.
"And it appearing that said parties have waived their right of exemptions under the laws of Alabama, let execution issue accordingly."
It is averred that that part of the judgment assessing 10 per cent. damages and interest is void, and the motion is that same be stricken from the judgment.
It is insisted that the penalty of 10 per cent. as provided by section 6153 should not be taxed against the defendant upon the affirmance of the moneyed judgment, because there was no legal supersedeas of the judgment as the defendant while giving a supersedeas bond had no surety thereon. There might be merit in this contention, but for section 1900 of the Code of 1923, which authorizes the mayor to execute the bond and that no sureties be required. Anniston v. Hillman, 220 Ala. 505, 126 So. 169. Nor is a judgment for the 10 per cent. dependent upon the fact that there must be more than one obligor upon the bond, as section 6153 expressly provides that the judgment must be rendered against "all or any of the obligors on the bond." (Italics supplied.) The defendant was an obligor on the bond.
We are also of the opinion that section 6153 applies to an affirmance of all judgments or decrees for money regardless of the nature or character of the defendant; that is, includes judgments against municipalities.
We think that section 8565 of the Code provides for interest from the rendition of the judgment and is broad enough to include the one against the city of Birmingham.
Motion denied.
All the Justices concur.