STATE ex rel. LYNNE, Sp. Sol., v. GURLEY et al.

(117 So. 297) STATE ex rel. LYNNE, Sp. Sol., v. GURLEY et al. (8 Div. 10.) Supreme Court of Alabama. June 7, 1928. Appeal and: error <&wkey;792 — Appeal1 will be dismissed ex mero -motu for failure of record to disclose service of appeal notice on appellees not voluntarily appearing. Where record failed to disclose that notice of appeal was served on appellees, appeal will be dismissed by Supreme Court ex meru motu, in absence of voluntary appearance by appellees in appellate court, since no appeal can be maintained to final judgment without an appellee. ©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Morgan County ; O. Kyle, Judge. Impeachment proceeding by the State of Alabama, on the relation of S. A. Lynne, Special Solicitor of the Circuit Court of Morgan County, against James J. Gurley and others, as members of the board of revenue. Judgment dismissing the information, and plaintiff appeals. Appeal dismissed. S. A. Lynne, of Decatur, for appellant. In view of the decision, it is not necessary that brief be here set out. No brief for appellees. [MAJORITY — THOMAS, J.] THOMAS, J. The appellant gave written notice of the appeal, but it was not served upon appellees, or the record fails to disclose such notice if duly given. Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; section 6140 et seq., Code, Gen. Acts 1911, p. 589. A due notice of appeal is necessary to bring in the party -in adverse interest not joining in or taking an appeal, and, failing in this, and there being no voluntary appearance in the appellate court of such adverse party or parties (L. & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900), the failure is that of jurisdiction in this court to proceed to judgment against such parties not brought in or not appearing (Chandler v. Home Loan Co., 211 Ala. 80, 99 So. 723; New Morgan County B. & L. Ass’n v. Plemmons, 210 Ala. 16, 97 So. 46; Smith v. Collier, 210 Ala. 23, 97 So. 101). Such a defect is taken by this court ex mero motu. For the failure of the record to show such due notice or appearance here, the appeal is dismissed; all the parties in interest are not before this court. Sherrod v. McGruder, supra; L. & N. R. Co. v. Shikle, 206 Ala. 494, 497, 90 So. 900. Citation or notice of appearance here is necessary as no appeal can be duly maintained to final judgment-here without appellee. Griffin v. Milligan, 177 Ala. 57, 58 So. 257; Williams v. Harper, 95 Ala. 610, 10 So. 327; Miller v. Parker, 47 Ala. 312. Dismissed by the court ex mero mótu. . ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.