Opinion
7 Div. 604.
August 1, 1963. On Rehearing August 29, 1963.
Appeal from the Circuit Court, Etowah County, Virgil Pittman, J.
Rowan S. Bone and Hugh H. Smith, Gadsden, for appellant.
Virgil M. Smith, Gadsden, for appellee.
Without responding to the brief and argument on application for rehearing, the original opinion is withdrawn, this opinion is substituted, and the application for rehearing is overruled.
Appellee has made a motion to dismiss the appeal on the ground that the transcript in this cause was filed too late in this Court. We believe the motion is well taken.
It appears that the decree from which the appeal was taken was entered on November 16, 1962. Notice of appeal was filed and the appeal bond was approved on February 15, 1963. An order extending the time for filing the transcript was granted by the lower court extending the time for filing said transcript until May 11, 1963. No other order for extension of time for filing the transcript was asked for or ordered. The transcript was filed in this Court on June 10, 1963, and is therefore delinquent. The order of the lower court extended the time for filing only until May 11, 1963. The appeal was taken in the case at bar when security for costs or the appeal bond was approved on February 15, 1963. § 766(b), Tit. 7, Code of Ala. 1940, as amended.
Supreme Court Rule 37 provides that in equity cases the transcript shall be filed in this Court within sixty days from the taking of the appeal, but that the trial judge may extend the time for filing the transcript for good cause shown, not to exceed more than thirty days; thereafter the time for filing may be extended only by this Court for good cause shown upon petition in writing by the appellant. The trial court exhausted its power by extending the time for filing the transcript to May 11. Thereafter no application was made to this Court for the extension of time for filing and the transcript was therefore filed too late.
It results that the motion to dismiss the appeal is well taken.
Original opinion withdrawn, present opinion substituted, and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.