3 Div. 671.

76 So.2d 175 (1954)

Hazel W. HAMNER v. E. S. SIBLEY.

Supreme Court of Alabama.

Attorney(s) appearing for the Case

Albert S. Gaston and William Grayson, Mobile, for appellant.

Caffey, Gallallee & Caffey, Mobile, and McMillan, Caffey & McMillan, Brewton, for appellee.

LAWSON, Justice.

This cause was submitted on motion to dismiss the appeal and on the merits.

The appeal was taken on May 9, 1953, from an interlocutory decree under date of April 11, 1953. Certificate of appeal reached this court on July 9, 1953, but the transcript was not filed until October 25, 1954.

On October 6, 1954, after two calls of the division had passed and no transcript had been filed, appellee filed his motion to dismiss the appeal, which motion contained a certificate to the effect that a copy of the motion had been served on one of appellant's attorneys.

Submission here was on October 28, 1954, just a few days after the transcript was filed. Submission by the appellant is on the merits alone. It appears from brief filed on behalf of appellant that she is represented here by one of the attorneys upon whom a copy of the motion to dismiss was served, but no reply is made to the motion to dismiss the appeal.

Under the circumstances here presented we have no alternative except to sustain the motion. § 769, Title 7, Code 1940; Snow v. City of Fairfield, Ala., 74 So.2d 485; State v. Barton, 257 Ala. 230, 58 So.2d 450; Parker v. Bedwell, 243 Ala. 221, 8 So.2d 893. Cf. Franks v. City of Jasper, 259 Ala. 641, 68 So.2d 306, and McCoy v. Wynn, 215 Ala. 172, 110 So. 129.

Motion granted and appeal dismissed.

LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.


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