Grant v. Grant , 57 Ala. App. 196 ( 1976 )

HOLMES, Judge.

This is an appeal from the granting of a motion to dismiss a complaint.

While it is the policy of this court and the spirit of ARAP to reach the merits of an appeal wherever possible, we cannot so do in this instance.

Rule 28(a)(2) of ARAP provides that the brief of appellant shall contain under appropriate headings and in the order here indicated:

“(2) A statement of the case (The statement shall first indicate briefly the nature of the case, the course of proceedings and its disposition in the court below)

Rule 28(a) (5) provides:

“(5) A.n argument (The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on); . .

Appellant’s brief contains no statement of the case. The argument section in its entirety is as follows:

“The facts are plain as follows:

“Mrs. Grant prior to Civil Case No. 20 in this Honorable Court and down to the present time has been a large portion of the time very distrubed [sic] and very ill both physically and mentally.

“During this same period to [sic] time Mr. J. M. Grant the appellee, has practiced consistent deceit and fraud upon the courts. However, the mental condition of Mrs. Grant and the apt concealment of this fraud by Mr. Grant has placed Mrs. Grant in an unfortunate position with the courts.

“In cases of serious illness such as Mrs. Grant’s laches will not run against her under the circumstances set forth in her petition and transcript herein. (Cunningham v. Wood [224 Ala. 288], 140 So. 351, and 1940 Code of Alabama, Title 7 Sec. 42.)

“In cases of this type Alabama has not abandoned the remedies available in a bill of review, a bill in the nature of a bill of review or an independent action. (Rule 60 and Rule 60(b) ARCP and Hadden vs. Rumsey Products [2 Cir.], 196 F(2nd) 92.)

“The Court should not have dismissed this cause but transferred it to an impartial tribunal for consideration as requested.”

We cannot perceive how the above argument relates to the assignments of error and/or issues involved in the appeal. To ascertain the issue or issues involved in this appeal, this court would have to search the record on appeal and then try to determine whether any error was committed by the trial court. Such a burden has not been placed on this court either by the legislature or the supreme court. The duty of presenting civil cases for review in an appellate court in a format prescribed by ARAP still rests with the appealing party and his attorney.

It is clear that appellant has not complied with Rule 28(a)(2) and (5).

Rule 2(a) (2) (D) provides that an appeal may be dismissed when a party fails to comply substantially with these rules. Appellant has so failed. Pursuant to Rule 2(a)(2), this court gave appellant an appropriate time to correct the deficiencies noted above. This has not been done.

Appeal dismissed.

BRADLEY, J., concurs.