Hudgins v. Pickens County, 62 So. 995

Hudgins v. Pickens County

62 So. 995 | Ala. Ct. App. | 1913

Rehearing

ON APPLICATION FOR REHEARING.

Courts do not favor the dismissal of appeals for defects in the mode or manner of their presentation, and on the showing made and arguments advanced for appellants in the application for a rehearing in this case we should be inclined to look favorably on the request urged upon us to permit a withdrawal of the submission for the purpose of assigning errors on the trans-script, to the end that the case be considered on its merits, if it were not for the condition in which we find the *231transcript. It is loosely tied together without any attempt at sealing, contains no seal of the court from the judgment of which the appeal purports to have been taken, and is not prefaced by an index of its contents, as required by law. — Code, § 2848; miles Nos. 26, 29 (Code, pp. 1512, 1513). But, aside from all of these deficiencies, the transcript is so totally defective as not to set forth the essential facts necessary to vest this court with jurisdiction to pass upon the questions sought to be presented. Even if we should grant the appellants’ request and allow the submission to be withdrawn in order that errors might be assigned upon the transcript, it could avail the appellants nothing, for, if errors were properly assigned, under the rulings of the Supreme Court the appeal would have to be dismissed because of the failure of the transcript to show that the judgment appealed from was rendered by a court organized pursuant to law.

The record shows no organization whatever of the court from the judgment of which the appeal is prosecuted, and, this essential fact not being shown, a dismissal would necessarily follow. — Pensacola, A. & W. Ry. Co. v. Big Sandy Iron Co., 147 Ala. 274, 41 South. 418; Thomas v. Daniel Bros., 42 South. 623; McPherson v. Wiggins, 40 South. 961. See, also, Grantham v. State, 3 Ala. App. 168, 57 South. 1025, and City of Demopolis v. Atkeison, 4 Ala. App. 278, 58 South. 684, in which cases this court has, as is its duty, followed the holdings of the Supreme Court in the above-cited cases on this proposition.

The contention in the application for a rehearing that the court should consider the matters presented by the record, without an assignment of errors, is without merit, and, even if meritorious, for the reasons above given could not be considered.

Application for rehearing overruled.

Lead Opinion

PELHAM, J. —

There is neither an assignment of errors nor anything that purports to be an assignment of errors on the record, and the judgment of the court beIoav must be affirmed for failure to comply with the rule requiring an assignment of errors on the transcript to present the rulings of the trial court for review. — Civil Code, p. 1506, rule 1.

Affirmed.