*1 134 Florence, Parnell, Fred S. 45
lant. Gen., Atty. and Silas A. A. Gen., III, Atty. Garrett, Asst.
C.
SAMFORD, Judge. proper with- appeal is on the record exceptions.
out bill of Form, indictment in Code charge all the offense. things sufficient to Jinright 606. 125 So. We record and find no have examined the
error, affirmed. and the
Affirmed. So. parte PITTMAN CONST. Ex CO.
Jan. 1938.
Rehearing denied Feb. 1938. Rehearing Denied March
Further *2 (cid:127) $1,870, -and bond in the sum of pf term to make return thereto at the fall the Monday division, in No- the third Fifth 1937,
vember, to this court. The writ after the formal statement following: tained the therefore com- “We diligent you mand to make search of proceedings your in the records and above office cause, certify, together and with transcript of said a full and complete proceedings, records and and execute a bond in tioner to sum Seventy Dol- Eighteen Hundred and of at ($1870.00), lars and make return hereto Division, the next of the Fifth Birmingham, for call Sadler, Jr., of W. H. 1937, Monday November, ‘to third Appeals Montgomery.” said Court of at signed This order was clex-kof this day May, the 27th- petitioner had notice. having November On return been made motion was made Hare, Tuskegee, Thos. B. W. C. plaintiff petition, dismissal of the which motion was Hill, Hill, Inge both J-r., and Wm. accompanied by a certifi- appellee. Montgomery, for clerk the circuit cate certifying county Macon that no^bond had been by of this issued the 27th May, day 19, 1937, coming November this cause On heard, the motion dismiss granted. Motion is now made set aside the order of dismissal on the PER CURIAM. grounds: providently (1) That the order was im- (cid:127)The in this case involves an petitioner’s (2) that county circuit of Macon award under the Workmen’s misinterpreted counsel court order Act, Compensation requiring of the bond as seq., as Code 7534 et amended. § precedent a condition to the issuance of the the first trial of this cause in the On writ; statute, (3) that under the plain- judgment was awarded circuit court authority giving, was without Court, tiff, to the and on certiorari precedent bond as condition -to Boles, 233 Ala. Pittman Construction Co. v. of the writ of issuance certiorari. judgment was revers- provides: 14 of Section the Code of 1923 ed and a new trial ordered. England, “The common law of so far the second trial the circuit court On Constitution, not it is inconsistent judgment again awarded shall, laws and institutions of this together jurisdiction of this amount within the in an court. On laws, such institutions with 19, 1937, May and within 30 decisions, rule of shall be the coiitinue- in the lower rendition from the force, may from except time to time it pray- petition was filed in this court repealed by legislature.” be altered or of cfertiorari ing issuance of a writ pro- Section 8986 of the Code of 1923 circuit court of Macon coun- directed to the vides : “The common as now in force proceedings ty requiring the record state, touching of the matters in this embraced in this there in the case that court chapter [Chapter on Stat- inspec- Court of certified to the repealed, utory Certiorari], but left appropriate and for other relief. tion full force.” 27, 1937, court issued the state, prayed, being requiring common-law and whenever statute is enacted petitioner to execute an ox- wherever troversy, necessary opinion is enacted Legislature such Judge, of the adverse law as consonant with the common obtains, party.” has been law unless such changed statute. Following supported the above rule and *3 by jurisdictions, the decisions of other the and 7578 the Sections 7571 p. in Enc.Pl.Pr. text as follows: reads enacted, and must 1923 were Code of thus discretionary “As it is with the court to com in with the be construed connection writ, or not issue in the exercise of nearly always to may, issue a the court In law as it existed. section mon it (and is its discretion in which setting manner a forth the after proper a exercise dis- employee employer and between cretion), impose giving the of a bond or to personal injury be submitted should recognizance costs, and for the indem- court, provided: simply “From a trial such decree nification of the in certiorari as any may by party aggrieved the terms shall be which the writ ap thirty thereafter certiorari within allowed.” supreme peal the of Alabama.” to apply existing this would Under statutes required While the bond to be Appeals in cases within the Court of its to jurisdiction. given in the order issued this court on per (inaptly denominated supersedeas haps), bond, a used in when power of Dealing then first with the writ, connection with the it would mean bond the execution a court to nothing more or less than bond to in a indemnify appellee against loss. to the demnify appellee against in the cause a review While the authorizes wrongful suing loss reason of out of statutory provision there is no the, it and as such we deal with here. writ, and, a regulating issuance of such proceeding In the bond a in therefore, provision of the statute must technically super required is denominated have been in consonance re- bond, proceeding in certio sedeas rari of quirements of the law. technically such bond is a bond called is not writ of certiorari re indemnity. purpose both is garded right, as one but rather one same, is, indemnify appellee to that discretionary with the which is wrongful loss reason of the promote justice ends of order to effectively suing out of the writ. possible. p. Am.Jur. it, As we take the enactment of the And, right while the to the writ has been Legislature the Code of in section 7571 of 7571,supra, given section of the Code of 1923,supra, simply desig discretion of the has open remedy of the losing nation away. taken been controversy submitted party in under rule, general It is a which we to find away limiting taking that section without or that, exception, discretionary if it is to power appellate of the defined not to issue or issue the the’ court by decisions the common law and the discretion, may, in the exercise of its and it Supreme and this court. nearly always proper exercise of dis cretion, As to or not the impose whether was of a bond or writ improvidently recognizance offered of costs and for the indemnifi prove tending solvency the defendant in certiorari evidence cation of as the no allowed; against whom the judg shall be terms was rendered. Without this bond as ment grown states this has to be a set the order of this tled, practice. Webb v. uniform McPherson know, the defendant in 1009; for all we the court Co., Payne v. & delay suing out the writ below might Martin, 407; McGehee, 1 Stew. Childress v. dissipate property, placing his it Minor 131. execution, beyond thereby reach an Payne Martin, In the cited case of defeating right his under supra, our Court said: “The law judgment. * * * prescribed has not the form or bond, misunderstanding pe As to expressly substance of the or directed meaning counsel required. should It has titioner’s as to the that how- court; ever, practice order of this the order must be been the established taken long Courts, requirements One bond and as a whole. that of its an as a condition on which the certiorari is bond issue, given. whenever from the of the The motion was nature
Í37 uncertainty toas and, if there was open order, interpretation of the explicitly stated. more counsel have it filing it, requirement of the we read As protection of the bond ample to inform -was rights in his lee requirement of was the that such tioner court. aside
The motion set is denied.
dismissal *4 Rehearing. amplified application opinion is
overruled. Lynne, A. Decatur,
S. for A. A. Atty. Gen., So. 921 NERLAND v. STATE. BRICKEN, Presiding Judge. appellant,, below, defendant tried and convicted an affidavit 22, 1938. March charged which him with the offense of selling, offering sale, keeping’. for' sale, prohibited liquors or beverages con trary peace dignity State Alabama. There to have been troversy as to the facts adduced the trial. The defendant offered no tes- timony. That for the State consisted the evidence of Kilgore witnesses and Sand- lin, the sheriff; former a deputy and their testimony was in testimony accord. Said tended show that prior some few to they prosecution commencement of this place entered a in Decatur known as the Railroad Shop, Street Barber of which admitted, the defendant Sandlin, witness charge. he was in partition There wás a shop and, barber as the wit- State entered, nesses the defendant was back partition and behind a- counter which there drinking small .were glasses, and some regular. sized water were, glasses. There time, at the several standing men in front of the counter They drinking. found several bottlesr of whisky gin and some on a table or little counter, shelves back with seals broken, whisky and some had been taken of each bottle. out Both witnesses testi- they, seen had fied in that place testimony before. There was other import by like these two State witnesses.