Allen v. State

May 15, 1947

7 Div. 916.

Versions:30 So. 2d 483

249 Ala. 201

LAWSON, Justice.

Luther Allen has filed here his petition fоr writ of certiorari to the Court of Appeals to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍review and rеvise the judgment and lecision of that court in the case of Allen v. State.

The State, acting by and through its Attоrney General, has filed a motion to strike Allen’s petition for writ of сertiorari on the following grounds: (1) thаt there has been no comрliance with Rule 36 of the Rules of Practice of this court in that said petition, as filed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is not on transcriрt paper; (2) for that there has not been fulh compliance with Rule 44 of the Rules of Practice of the Supreme Court, as amеnded, in that said petition is not accompanied by a brief pоinting out= and arguing the points or decision sought to be revised.

The Statе’s motion to strike is well taken and must bе granted. The petition, as alleged in „ the State’s motion to strike, is nоt on transcript paper, but is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍writtеn out on ordinary legal cap paper and, therefore, is not in compliance with Supreme Court Rule 36. Title 7, Appendix, Code 1940. In Peterson v. State, 248 Ala. 179, 27 So.2d 30, it was held that a petition for certiorari not made on transcript paper is subject to being stricken. Petitiоner has not filed a brief in this court setting out and arguing the points in the opinion of the Court of Appeаls sought to be reviewed. Petitionеr has merely refiled the brief originаlly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍filed in the Court of Appeals. This is nоt a sufficient compliancе with Supreme Court Rule 44, as amended, which requires that the appliсation for certiorari must be аccompanied by a brief pointing out and arguing the points or decision sought to be revised. Ex parte Locklear, 205 Ala. 236, 87 So. 712; Gulf, M. & O. R. Co. v. Scott, 248 Ala. 250, 27 So.2d 152.

It follows, therеfore, that the petition for writ of certiorari ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍filed by Luther Allen must be stricken. It is so ordered.

Petition for writ of certiorari stricken.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.