Holt v. First Nat. Bank of Mobile

372 So. 2d 3 (1979)

Waring Inge HOLT v. The FIRST NATIONAL BANK OF MOBILE, etc. Waring Inge HOLT et al. v. The FIRST NATIONAL BANK OF MOBILE, etc.

78-132, 78-133.

Supreme Court of Alabama.

May 11, 1979.

Rehearing Denied June 22, 1979.

W. Dewitt Reams, Mobile, for appellants.

James J. Duffy, Jr. and Carroll H. Sullivan, Mobile, for appellee, First Natl. Bank of Mobile.

EMBRY, Justice.

Appellant, Waring Inge Holt, filed her complaint in 78-132 on 1 April 1976. She and her sister, Ellen Inge Trimble, filed their complaint in 78-133 on the same day. Appellee in each case, The First National Bank of Mobile, filed its motion to dismiss in each case. These were granted on 14 May 1976. Both actions were dismissed and costs taxed to appellants. On 11 June 1976, appellants moved to set aside the judgments of dismissal and for leave to amend the complaints. On 24 October 1978, some two years and four months later, the circuit court entered a formal order denying appellants' motions and each filed notice of appeal to this court on 30 November 1978.

The dispositive issue is whether the appeals must be dismissed as untimely filed because appellants' motions to set aside the judgments and for leave to amend were automatically denied ninety days from 11 June 1976 under the provisions of Rule 59.1, ARCP. We hold they were and dismiss the appeals.

Appellants' motions to set aside the judgments dismissing the actions and for leave to amend the complaints must be treated as Rule 59(e), ARCP, motions. 3 Moore's Federal Practice, ¶¶ 15.07[2], 15.10 (1978). See also, Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So. 2d 158 (Ala.1978). As such, they were automatically denied ninety days after filing. Rule 59.1, ARCP. Since *4 the motions were filed on 11 June 1976, they were effectively denied on 9 September 1976. Appellants failed to give notice of appeal within forty-two days thereafter.

We are, therefore, compelled to dismiss these appeals.

APPEALS DISMISSED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.