Appeal Is “Filed” When Received By Circuit Clerk — Not When Mailed

An appeal is “filed” when the circuit clerk receives the notice of appeal, not when a party mails it. Because the clerk received the notice after the time for filing an appeal had elapsed, the appeal was late and was consequently dismissed D.T. v. State, No. 2070513 (Ala. Civ. App. Jun. 27, 2008).

The juvenile court denied a father’s petition for visitation. The father appealed to the circuit court. That court dismissed the father’s case for failure to state a claim.  The father then appealed to the Court of Civil Appeals; but the circuit clerk did not receive his notice of appeal until 18 days after the circuit court’s order of dismissal.

The Court of Civil Appeals held that the appeal was late and that it thus lacked jurisdiction. Although neither party had questioned its jurisdiction, the court raised the issue ex mero motu.

“The timely filing of a notice of appeal,” the court wrote, “is a jurisdictional act.” Here, the notice was four days late. Rule 28(C) of the juvenile rules provides that, “Written notice of appeal shall be filed within 14 days of the date of judgment . . . , whether the appeal is to an appellate court or to the circuit court for trial de novo.” (Emphasis in D.T.)  The Court of Civil Appeals held that this meant the circuit clerk had to receive the notice of appeal within the 14-day period. It was not enough that the father claimed to have mailed the notice, by overnight courier, within the 14-day deadline. The court wrote:

            Whereas, service of papers is complete upon mailing, filing is not complete until the notice if delivered to the proper filing officer.

Put another way, the so-called “mailbox rule,” as applied to contracts or service of papers, is not applicable in the context of a filing requirement. A document has not been filed until it has actually been received by the court; mere mailing is not enough.

(Citations omitted.)

Because the circuit clerk did not received the father’s notice of appeal until four days after the 14-day deadline, his appeal was late. The Court of Civil Appeals thus lacked jurisdiction and dismissed the appeal.