Frierson v. Haley

Frierson v. Haley. Assumpsit. (Decided May 11, 1911. 55 South. 429.) Appeal and Error; Citation of Appeal; Necessity. — Where the record does not show issuance or service of citation of appeal on appellee, and there is no joinder of issue on the record and no appearance by appellee, the appeal must be dismissed on motion. (Section 2881, Code 1907.) Appeal from Lauderdale Circuit Court. Heard before Hon. C. P. Alm'on. Assumpsit by C. L. Haley against J. D. Frierson. Judgment for plaintiff, and defendant appeals. Appeal dismissed. S. W. Frierson, for appellant. Counsel discuss the errors assigned but does not discuss the questions here decided. Emmet O’Neal, and A. E. Walker, for appellee. Counsel appear specially for the purpose of moving the dismissal of the appeal for want of issuance and service of citation upon the appellee or their counsel, and in support of their motion they cite Sec. 2881, Code 1907. [MAJORITY — PELHAM, J.] PELHAM, J. This is an appeal from a judgment rendered in the circuit court of Lauderdale on June 1.7, 1910, on which day the appellant, the defendant in the court below, prayed for and obtained an appeal to the Supreme Court of Alabama. The case was duly and regularly transferred to this court by the Supreme Court. The record fails to show that any citation or notice of appeal was ever issued or served upon the adverse party, as required by law.—Code 1907, § 28881. There is no appearance entered in the Supreme Court or in this court by the appellee, except specially for the purpose of making a motion to dismiss the appeal on this ground. For failure to issue and have served a citation of appeal, the case must be dismissed.— Williams v. Harper, 95 Ala. 610, 10 South. 327; Harris v. Harris, 41 Ala. 364. The appeal is dismissed.