LYONS v. STATE

7 Div. 415.

91 So.2d 520 (1956)

Jim LYONS v. STATE.

Court of Appeals of Alabama.


Attorney(s) appearing for the Case

Keener & Keener, Centre, for appellant.

John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.


HARWOOD, Presiding Judge.

The Attorney General has filed a motion to strike the record and dismiss the appeal in this cause on the ground that it was not timely filed in this court.

The record affirmatively shows that the transcript of the evidence was filed with the clerk below on 16 February 1956, with notice to counsel as required by Section 827(1a), Title 7, Code of Alabama 1940.

No objections were filed to the transcript of the evidence within ten days of its filing with the clerk below. The correctness of the transcript of the evidence must be conclusively presumed as of the date of its filing. Section 827(1a), supra.

The full record was not filed in this court until 11 May 1956, or some 85 days after the establishment of the transcript of the evidence.

Section 769, Title 7, Code of Alabama 1940, provides that the appellant shall file the transcript (full record) in the office of the clerk of this court within sixty days of the establishment of the bill of exceptions. The transcript of the evidence is now of course substituted for the bill of exceptions.

Further, Supreme Court Rule 37, Code 1940, Tit. 7 Appendix, provides as follows:

"Where bills of exceptions have been abolished, the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The trial judge may extend the time for filing transcript of the record in this court for good cause shown for not to exceed thirty days. Thereafter the time for filing in this court may be extended only by this court for good cause shown upon petition in writing of which adversary counsel must have ten days' notice. A copy of any order of trial judge extending the time for filing transcript shall be filed by appellant in this court within five days from the date of such order."

No extension of time for the filing of the record in this court was sought in either the court below or in this court.

The operation of the statutes and rules appertaining necessitate a granting of the Attorney General's motion.

Record stricken, appeal dismissed.


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