Opinion
6 Div. 621.
August 30, 1954.
Appeal from the Circuit Court, Jefferson County, F. R. Mathews, J.
Wilkinson Skinner, Birmingham, for appellants.
Frank B. Parsons, Fairfield, for appellee.
This is an appeal from a final decree rendered on June 23, 1953. The appeal was taken in July, 1953, but no transcript was filed until March 17, 1954. Appellee filed a motion to dismiss the appeal on March 6, 1954 because of the belated filing of the transcript. The case was submitted on this motion on March 25, 1954, and appellant made no response.
Under Section 769, Title 7, Code 1940, the transcript should have been filed sixty days after the taking of the appeal. Section 770, Title 7, Code 1940, provides for a motion to dismiss when the appellant fails to comply with Section 769. But Supreme Court Rule 41, Code 1940, Tit. 7 Appendix, provides that the transcript must be filed with the clerk of the court not later than the first day of the first week of the term during which the case is subject to call in this court. In the instant case, that was November 23, 1953. Under both Rule 41 and Section 770, dismissal for failure to file the transcript in time is within the discretion of the court; but when, as here, the appellant makes no showing of good cause for failing to file the transcript on time, the court has no choice and must grant the motion to dismiss. State v. Barton, 257 Ala. 230, 58 So.2d 450.
So ordered.
GOODWYN, MERRILL and CLAYTON, JJ., concur.