Opinion
6 Div. 305.
January 26, 1967. Rehearing Denied May 5, 1967.
Appeal from the Probate Court, Jefferson County, Paul J. Meeks, J.
Berkowitz, Lefkovits, Vann, Patrick Smith, Birmingham, for appellants.
Pritchard, McCall Jones and Rogers, Howard, Redden Mills, Birmingham, for appellees.
On May 26, 1965, the Probate Court of Jefferson County rendered a decree in the estate of Sam Carruba, deceased, awarding attorneys' fees to two separate law firms, appellees in this case. On June 25, 1965, appellants filed two applications "for rehearing and motion to set aside, vacate or modify" said decree. After an oral hearing on these applications, a decree was rendered on December 22, 1965, modifying the decree of May 26, 1965.
This appeal is from the decree of December 22, 1965. The appeal was taken on January 25, 1966, more than thirty days after rendition of the decree appealed from. Accordingly, the appeal must be dismissed because it was not filed within the prescribed time. Act No. 633, § 5, appvd. July 10, 1940, Gen.Acts 1939, pp. 1000-1001 (Code 1940, Tit. 62, § 181(5), 1955 Cum. Pocket Part. p. 76; Recompiled Code 1958 (unofficial), Vol. 14, Appendix § 710, p. 289), provides for appeals from the Probate Court of Jefferson County to the Supreme Court, as follows:
"Section 5. — Appeals may be taken from the orders, judgments and decrees of such Probate Courts, relating to the administration of such estates, including decrees on partial settlements and rulings on demurrer, to the Supreme Court within thirty days from the rendition thereof, or within thirty days from the decision of such Courts on a motion for new trial, in the manner and form as is now provided for appeals from the Probate Courts to the Supreme Court."
This special statute controls as to the time for taking this appeal.
We have no alternative but to dismiss the appeal since it was not taken within the prescribed thirty days.
Appeal dismissed.
LAWSON, COLEMAN and HARWOOD, JJ., concur.