Public-domain · open source
OpenJurist

375 So. 2d 428

Stewart v. Younger

Supreme Court of Alabama

Decided July 27, 1979

Supreme Court of Alabama · decided 1979-07-27

Key passage — most relied on by later courts

“In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court.”

quoted by 6 later decisions, including Hayden v. Harris, 910 So. 2d 146 - Loggins v. State

“to notice the filing date and dismiss the appeal upon [its] own motion when the notice of appeal is not filed with the trial court within the prescribed time.”

quoted by 1 later decision, including 901 So. 2d 658 - Bowater Inc. v. Zager

Relies on 363 So. 2d 760 - Holmes v. Powell

Good law ✅— No negative treatment on recordhow we know

Decided 1979-07-27

How this case has been cited

Cited by 19 later decisions — most recently December 2012

1 federal appellate · 18 state decisions

7019791980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1

¶2This appeal by P.R. Stewart, one of the devisees of the Estate of Felix Isaiah Stewart, challenges the "Final Decree on Final Settlement" entered by the Circuit Court of Madison County.

¶3Apparent upon the face of the record, however, is a fatal defect in this appeal. The latest order appealed from (the trial Court's order overruling Stewart's "Petition for Amended Order or Decree") is dated July 18, 1978. The notice of appeal was filed in the Circuit Court on August 30, 1978 — 43 days after entry of the July 18 judgment.

¶4Assuming the order appealed from will support an appeal, the Alabama Rules of Appellate Procedure contain but one jurisdictional Rule. ARAP 4 provides:

¶5 ". . . [T]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from."

¶6We held in Holmes v. Powell, 363 So.2d 760 (Ala. 1978), that ARAP 25 "does not apply to all filings, but only to filings in an appellate court. That rule does not allow a certified mailing date as this was to be deemed the filing date in atrial court." (Emphasis in original.) In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court. Furthermore, it is our duty to notice the filing date and to dismiss the appeal upon our own motion when the notice of appeal is not filed with the trial court within the prescribed time.

¶7APPEAL DISMISSED.

¶8MADDOX, JONES, SHORES, EMBRY, and BEATTY, JJ., concur. *429

/375/so2d/428 · .json · Public domain