George H. Johnson and Gloria J. Johnson
Heath Emerson and Danny Adcock
Appeals from Limestone Circuit Court. (CV-97-134).
Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
77(d), Ala. R. Civ. P., provides a procedure whereby a party
claiming lack of timely notice of the entry of an appealable
order or judgment may seek an extension of time to appeal.
This case presents an unusual procedural scenario in which
the Limestone Circuit Court (" the trial court" )
granted George H. Johnson and Gloria J. Johnson relief
pursuant to Rule 77(d) by extending the time to appeal from a
judgment permitting a writ of execution to be issued against
them in favor of Heath Emerson and Danny Adcock. This court
docketed that appeal as appeal no. 2130842. After that appeal
was docketed, Emerson and Adcock filed a motion in the trial
court essentially asking the trial court to rescind the order
extending the time to appeal. Following a hearing, the trial
court entered an order rescinding the order granting the
extension of time to appeal. The Johnsons appealed from that
order, and this court docketed that appeal as appeal no.
2130974. In appeal no. 2130974, we affirm the decision of the
trial court rescinding the extension of time to appeal, and
we dismiss appeal no. 2130842 as being untimely filed.
and Procedural History
unusual circumstances of this case present a procedural
quagmire. On April 1, 1997, Redstone Federal Credit Union
(" Redstone" ) sued the Johnsons in the trial court
alleging that the Johnsons had defaulted on payments required
to be made under a credit agreement. The trial court entered
a consent judgment against the Johnsons on June 9, 1997, in
favor of Redstone in the amount of $27,715.08, plus interest
and court costs. Redstone recorded the certificate of
judgment in the Limestone Probate Court.
judgment was not paid, and on May 3, 2007, Redstone filed a
motion in the trial court to revive the judgment pursuant to
§ 6-9-192, Ala. Code 1975, which provides, in pertinent
part, that " [n]o execution shall issue on a judgment
... on which an execution has not been sued out within 10
years of its entry until the [judgment] has been
revived." The trial court granted the motion to revive
the judgment on May 9, 2007. On June 26, 2007, Redstone
the certificate of the revived judgment in the Limestone
25, 2013, Redstone assigned the judgment to Emerson and
Adcock. A document providing notice of the transfer was filed
in the trial court and recorded in the probate court. On July
29, 2013, Emerson and Adcock filed a motion for a writ of
execution of the judgment against real property owned by the
Johnsons. Emerson and Adcock sought execution of the judgment
in the amount of $74,457.11, which they claimed was the
amount due with the accrual of postjudgment interest and
after applying any credits. On August 5, 2013, the trial
court granted the motion seeking a writ of execution. The
Johnsons filed a petition for relief in the United States
Bankruptcy Court for the Northern District of Alabama, and
the writ of execution was stayed.
stay was later lifted, and Emerson and Adcock proceeded with
collection efforts. On December 18, 2013, the trial court
entered an order on the Johnsons' claim of exemption and
directed that the real property not subject to exemption to
January 15, 2014, the Johnsons filed a motion that they
styled as being filed pursuant to Rule 60(b), Ala. R. Civ.
P., seeking to set aside the order granting the motion for a
writ of execution. In that motion, the Johnsons argued that
the June 9, 1997, judgment should be considered satisfied or
discharged and that the order reviving the judgment was void.
On March 3, 2014, the sheriff filed a return of execution
indicating that the designated real property had been sold
contingent upon the ruling of the trial court on the
Johnsons' pending Rule 60(b) motion. The trial court held
a hearing on the Johnsons' motion on April 2, 2014. On
May 20, 2014, the trial court entered an order denying the
Johnsons' motion and confirming the sheriff's sale of
the Johnsons' property.
3, 2014, 44 days after entry of the May 20, 2014, order, the
Johnsons filed a notice of appeal in the trial court.
Although they had been represented by counsel during some or
all of the aforementioned proceedings, the Johnsons filed the
notice of appeal without counsel, and only Gloria Johnson
signed the notice of appeal. The notice of appeal did
not contain a completed certificate of service; however, a
notation on the case-action summary indicates that the
trial-court clerk sent the notice of appeal to all counsel
and all parties on July 9, 2014. The notice of appeal was
docketed in this court on July 14, 2014, and assigned appeal
same day the notice of appeal was filed, the Johnsons filed a
copy of the notice of appeal in the trial court along with a
document stating: " We, George H. and Gloria J. Johnson
respectfully request a motion to accept out of time appeal.
We were not made aware of a ruling by the judge for almost 2
weeks after it was entered due to attorney neglect." The
document did not contain a certificate of service.
15, 2014, the trial-court clerk docketed the Johnsons'
July 3 document attached to the notice of appeal as a "
motion to accept an out-of-time appeal." On July 22,
2014, new counsel entered an appearance for the Johnsons in
the trial court. On that same day, the trial court entered an
order stating as follows: " Ordered, MOTION TO ACCEPT
OUT OF TIME APPEAL filed by ...