Summary
dismissing the appeal because the record did not reveal that the appellee had been served with a citation of appeal or other notice of the existence of the appeal
Summary of this case from Tolbert v. ErvinOpinion
8 Div. 10.
June 7, 1928.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
S. A. Lynne, of Decatur, for appellant.
In view of the decision, it is not necessary that brief be here set out.
No brief for appellees.
The appellant gave written notice of the appeal, but it was not served upon appellees, or the record fails to disclose such notice if duly given. Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; section 6140 et seq., Code, Gen. Acts 1911, p. 589.
A due notice of appeal is necessary to bring in the party in adverse interest not joining in or taking an appeal, and, failing in this, and there being no voluntary appearance in the appellate court of such adverse party or parties (L. N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900), the failure is that of jurisdiction in this court to proceed to judgment against such parties not brought in or not appearing (Chandler v. Home Loan Co., 211 Ala. 80, 99 So. 723; New Morgan County B. L. Ass'n v. Plemmons, 210 Ala. 16, 97 So. 46; Smith v. Collier, 210 Ala. 23, 97 So. 101).
Such a defect is taken by this court ex mero motu. For the failure of the record to show such due notice or appearance here, the appeal is dismissed; all the parties in interest are not before this court. Sherrod v. McGruder, supra; L. N. R. Co. v. Shikle, 206 Ala. 494, 497, 90 So. 900. Citation or notice of appearance here is necessary as no appeal can be duly maintained to final judgment here without appellee. Griffin v. Milligan, 177 Ala. 57, 58 So. 257; Williams v. Harper, 95 Ala. 610, 10 So. 327; Miller v. Parker, 47 Ala. 312.
Dismissed by the court ex mero motu.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.