50 Ala. 474 | Ala. | 1874
The petition in this case shows, that Keeling, the applicant, was committed, on a preliminary exam
In the case of Ex parte Ray & Defoe, at the January term, 1871, of this court, on an application like the present, the practice in such cases was discussed and settled. 45 Ala. 15. Since then, the jurisdiction of the probate judges of the several counties in this State has been very much extended, in such applications, by the act of the general assembly, entitled “An act to amend section 4264 of the Revised Code of Alabama,” approved March 29, 1873. Acts of Ala. 1872-1873, p. 120, No. 72. Before the passage of this act, the probate judge could not admit to bail, on writ of habeas corpus, where the commitment was for a felony punishable by death or imprisonment in the penitentiary for life. Rev. Code, § 4264; 45 Ala. 15, supra. But now, the law as above amended directs, that, “ where the person is confined in the county jail, or any other place, on a charge of felony, or under commitment, or on an indictment for felony, the petition for habeas corpus must be addressed to the judge of the city court, or the nearest circuit judge or chancellor, or the probate judge of the county, where the person making the application for bail is confined.” Acts, supra, p. 120, No. 72. This act last named puts the jurisdiction of the pi'obate court on an equality, within the county of his official authority, with the judge of the city court, the circuit judge, and the chancellor, when the confinement is within the county of the probate judge’s jurisdiction.
The usual practice, in such a case as this, is to grant a rule to shpw cause, and have the same served on the learned judge of the circuit court; and a proper courtesy to the distinguished officers exercising the duties of that jurisdiction would require that practice to be rigidly adhered to in this case, were it not otherwise agreed between the parties themselves in this proceeding. Here, it is agreed by the parties, by a written consent entered on the transcript of the record, that, in case it should be determined that the prohibition has been improvidently granted, then a peremptory mandamus may issue at once, in accordance with the prayer of the petition. A peremptory mandamus will therefore be issued, returnable into this court on Monday, the 9th day of February, 1874. It is further ordered, that the petitioner, said N. R. Keeling, pay the costs of this proceeding in this court.