This appeal is from a final decree rendered by the Circuit Court in Equity of Jefferson County.
The case is submitted on appellant's motion to strike the transcript and on the merits. The motion to strike is grounded on the failure to timely file the transcript as required by Supreme Court Rule 37, as amended. The motion is well taken and of consequence the case cannot be considered on its merits.
Revised Rule 37 provides:
The rule, as appears, is that the transcript of the proceedings should have been filed in this Court within sixty days of the time of the taking of the appeal unless the time for the filing is extended by the trial court for good cause shown, etc. The difficulty here, however, is that the appeal was taken April 12, 1955, and the revised rules did not become effective until June 1, 1955. Thus the appeal was taken before the effective date of the revised rules. The question is whether under such a status old rule 41 (and §§ 769, 770, Tit. 7, Code of Alabama, 1940) as constructed by this Court control, or rule 37 of the new rules controls.
We hold to the latter view. The caption of the revised rules making them effective June 1, 1955, also provides, "that all appeals taken or filed, but not submitted prior to June 1, 1955, shall become subject to these rules on and after June 15, 1955." The instant appeal, therefore, having been taken before the effective date of the revised rules but not submitted until after that date, to wit, October 7, 1955, is governed by the new rules as of June 15, 1955. Rule 37, as quoted above, provides: "In equity cases the transcript shall be filed within sixty days of the taking of the appeal." (Unless, of course, the time had been extended by the trial court in accordance with the rules.) With respect to this appeal the transcript should have been filed in this Court within sixty days from June 15, 1955. It was not so filed, and the time was not extended by the trial court, resulting that the motion to strike the transcript is well taken and must be sustained, thereby requiring an affirmance of the decree.
We might also observe that even under old rule 41 and the Code sections, supra, although not here controlling, a motion to strike the transcript would be meritorious. Spruiell v. Stanford, 258 Ala. 212, 61 So.2d 758; State v. Barton, 257 Ala. 230, 58 So.2d 450.
All Justices concur.