The Alabama State Milk Control Board, under authority vested in it by the Legislature (Title 22, § 205 et seq.) promulgated a regulation known as Hauling Order No. 7, which became effective August 15, 1966. The appellants here are milk producers or distributors who were directly affected by the Board's order.
Following the Board's order and on August 25, 1966, the appellants filed a petition for writ of certiorari in the Circuit Court of Montgomery County pursuant to the above section. On August 30, 1966, the appellee (the Board) filed a motion to dismiss the petition for failure to have been verified in accordance with the foregoing section. The Circuit Court granted this motion on September 7, 1966 and entered the following decree:
It should be noted that the attempted amendment referred to was filed on August 31st and contained a verification.
Following the decree of dismissal entered on September 7, 1966, the appellants, on September 20, 1966, filed a "motion for rehearing" in the trial court stating that "the grounds for this motion for rehearing is based upon Section 276, Title 7, Code of Alabama 1940, in that the Court's decision is not sustained by the great preponderance of the evidence * * *."
This motion was denied by the court on September 30, 1966. The appeal to this Court was taken on October 24, 1966.
The appellee has filed a motion to dismiss this appeal on ground that it was not timely taken. We first consider this motion.
Title 22, § 226, makes no provision for review in this Court of the judgment rendered in the Circuit Court. However, we have held that an appeal from the judgment of the Circuit Court to this Court lies by virtue of the provisions of Title 7, § 1074. White Way Pure Milk Co. v. Alabama State Milk Control Board, 265 Ala. 660, 93 So.2d 509. Section 1074 provides:
An examination of the record indicates that the final judgment in this case was rendered on September 7, 1966. The appeal was taken on October 24, 1966. The appeal has come too late, and we are without jurisdiction to entertain it. The case is analogous to State v. Seminole Bottling Co., 235 Ala. 217, 178 So. 237. There the State filed a bill for injunction against
So, here too, appellants have failed to appeal from the final decree rendered by the court on September 7, within the 30 days allowed by Title 7, § 1074. Instead, appellants filed in the trial court a motion for rehearing which was denied. The appeal from the final judgment of September 7 comes too late. There is only one final judgment in this case and that was rendered on September 7. The appeal must be taken within 30 days from that date.
It follows that the motion to dismiss the appeal is and the same is hereby granted.
Purely by way of dictum we point to the following. It is the gist of appellants' contention that the trial court erred in dismissing the petition for writ of certiorari for failure to include a verification. The position of the trial court, as expressed in the foregoing decree, was that Title 22, § 226, specified that in order to invoke the trial court's jurisdiction under that section, petitioner was required to file a verified petition within 10 days of the day the Milk Board rendered its order. The trial court believed that these requirements were jurisdictional and that inasmuch as a verified petition was not filed within 10 days, the court had no jurisdiction to act. In this the court was correct. Alabama Alcoholic Beverage Control Board v. Roberts, 274 Ala. 256, 147 So.2d 822 (1962) involved a bill seeking preliminary or interlocutory relief. The court rule under which the bill was filed required that such bills must be sworn to. There this Court held, speaking through the Chief Justice:
Here, then, the trial court correctly interpreted the requirements of Title 22, § 226, as being jurisdictional. The Court's jurisdiction was not invoked unless a verified petition was filed within the ten day period.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.