This is an appeal from a final decree of the Circuit Court of Winston County, in Equity.
Submission here was on motion to dismiss the appeal and on the merits.
The motion for dismissal takes the point, among others, that no citation of appeal was served on appellee or his attorney, as required by § 801, Title 7, Code 1940.
Due service of citation of appeal on the adverse party, his attorney or solicitor is necessary to invoke the jurisdiction of this court (in the absence of waiver), and without the record so showing, the appeal is subject to dismissal. Brock v. Stimpson, 253 Ala. 138, 43 So.2d 133, and cases cited.
By filing a brief on the merits the appellee has not waived service of citation of appeal. Brock v. Stimpson, supra.
Appellee's motion to dismiss is in proper form. Due notice thereof was timely given and the motion was insisted upon at submission. It follows that the motion must be granted.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.