Alabama Appellate Watch

In Eldridge v. Eldridge, the Alabama Court of Civil Appeals dismissed an appeal in a case originating in the probate court as from a void judgment because postjudgment motions in the probate court were not timely filed. 

In Eldridge, the probate court entered a final judgment on August 10, 2006.  Although thirty days from this date would be September 11, 2006, the defendant’s postjudgment motion was date stamped September 12, 2006.  Realizing that the motion indicated it was filed too late, the defendant filed a motion in the probate court asking the court to correct the record to reflect that her postjudgment motion actually had been timely filed on September 11, 2006.  She submitted an affidavit of her attorney in support, stating that the motion had been filed on September 11, 2006

The parties treated the postjudgment motion as if it had been timely filed on September 11, 2006 and as if it had been denied by operation of law on December 11, 2006.  The probate court, however, never ruled on the motion to correct the record.

On January 22, 2007, the defendant appealed to the circuit court.  On March 30, 2008, the circuit court purported to enter a judgment affirming the probate court.  The defendant filed a notice of appeal on April 2, 2008.  

The court concluded that the case was due to be dismissed as from a void judgment.  It noted that the timely filing of a notice of appeal from the probate court to the circuit court is a jurisdictional act.  The defendant’s notice of appeal was due to be filed no later than 42 days from the date the probate court’s order was entered unless there was a timely-filed postjudgment motion tolling that time.  In this case, there was not.  Although the defendant sought to correct the record to show that her postjudgment motion was filed on September 11, 2006, that motion was never ruled upon and the record was never, therefore, so corrected. 

Although the defendant submitted a letter brief in which she alleged that an internal review by the probate court clerk indicated that the postjudgment motion had been filed on September 11, 2006, nothing submitted in connection with that letter was part of the record on appeal and, even assuming that those materials were in the record, there was no indication that the probate court had granted the motion to correct the record.  That the plaintiff agreed that the postjudgment motion had been timely filed was no matter because the parties cannot confer subject matter jurisdiction. 

Accordingly, the circuit court’s April 2008 judgment purporting to affirm the probate court’s judgment was void and could not support an appeal.