Sabino v. INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY , 52 Ala. App. 368 ( 1974 )

BRADLEY, Judge.

A complaint was filed on October 19, 1972 in the Circuit Court of Conecuh County by Tony A. Sabino, Jr. against Independent Life and Accident Insurance Company seeking benefits under the workmen’s compensation laws of Alabama. A demurrer was filed by the defendant on November 27, 1972; then on January 16, 1973 defendant filed an answer to the complaint. On February 23, 1973 trial was had before the court sitting without a jury, and at the conclusion of the hearing, the matter was taken under advisement. Plaintiff filed an amendment to his complaint on March 30, 1973. On April 27, 1973 defendant filed a “Pleading.” The court, on May 14, 1973, entered a judgment awarding plaintiff medical expenses of $2,627 under the provisions of 42 U.S.C. §§ 2651-2653.

On June 9, 1973 the trial court withdrew its judgment of May 14, 1973 and kept the matter under advisement. The defendant, on July 30, 1973, filed a motion which was never ruled on asking that the trial court set aside the submission of the case. Also, on that same day, the defendant filed an amendment to its answer. Then, on August 23, 1973, the trial court entered a judgment that was the same as it had rendered on May 14, 1973.

The defendant filed its petition for the writ of certiorari in this court on September 18, 1973 and the writ was issued on that same day. On November 15, 1973 an extension was granted defendant by this court for filing its return to the writ to December 19, 1973.

On November 29, 1973 the court reporter filed the transcript of the testimony with the clerk of the Conecuh County Circuit Court and the clerk of that court filed the transcript of the record in this court on December 14, 1973.

Petitioner here, defendant below, has filed seven assignments of error, but there are only two issues raised by these assignments sufficiently argued in brief to warrant our consideration. The first one contends that the trial court erred in not making a finding of fact reflecting the alleged settlement of a tort action wherein plaintiff had sued the manufacturer of his motor vehicle to recover for his alleged injuries; and, second, petitioner says that the trial court erred in ruling that plaintiff could recover under the Alabama workmen’s compensation law for hospital services rendered to him by the U. S. Government and for which he was not liable.

Prior to a consideration of these issues we must take up two motions filed in this court by the respondent here, plaintiff below.

On the Motions

Respondent has moved this court to dismiss the petition and quash the writ on the ground that the petition was filed in this court more than thirty days after the final judgment in the trial court. Title 26, Section 297, Code of Alabama 1940, as Recompiled 1958, provides that review of a workmen’s compensation case must be sought in the appellate court within thirty days of the final judgment rendered in the trial court.

The record reflects that the final judgment was made in the trial court on August 23, 1973 and the petition for the writ of certiorari to review that judgment was filed in this court on September 18, 1973. As can be seen, the petition was filed in the reviewing court within the thirty day period prescribed by statue.

Respondent, however, argues that the final judgment was rendered on May 14, 1973 rather than August 23, 1973, and as a consequence, the petition was filed in the appellate court more than thirty days after final judgment, which made it too late.

It will be noted from the aforementioned chronology of events in the trial court relating to this case that the trial court did render a decision on May 14, 1973, but within thirty days thereafter, and more specifically on June 9, 1973, withdrew this decision — as it had a right to do (see Title 7, Section 210, Code of Alabama 1940, as Recompiled 1958) — and kept the matter under advisement until August 23, 1973 when it rendered its final judgment. Inasmuch as the petition was filed in this court within the statutory time period, the motion to dismiss is denied.

Respondent has also moved this court to strike the transcript of the testimony filed by the court reporter with the circuit court clerk on November 29, 1973 on the ground that it was not filed within sixty days as required by statute, i. e., Title 7, Section 827(1), Code of Alabama 1940, as Recompiled 1958. No extensions for such filing as authorized by the same statute appear of record.

The question of the applicability of Section 827(1) to workmen’s compensation cases on review by writ of certiorari in an appellate court was decided by this court in Eddons Drug Co. v. Wright, 46 Ala.App. 645, 248 So.2d 140. The gist of the decision was that the writ of certiorari issued to the trial court prescribed the records to be sent to the reviewing court and the time within which they were to be returned. Should the prescribed time be insufficient, it was suggested that the clerk of the circuit court request an extension for filing the designated records from the reviewing court. The holding was to the effect that Title 7, Section 827(1), supra, was not applicable to workmen’s compensation cases on review in an appellate court. This court decided that the writ itself prescribed the time limit within which the records of the trial court were to be furnished to it for review and any extensions for so filing were to be presented to it for approval or disapproval. In the case at bar this procedure was observed.

There being no merit in the motion to strike, it is overruled.