State ex rel. Attorney General v. Livingston,

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Notebook

| Ala. | Jun 30, 1910

Concurrence Opinion

McCLELLAN, J.

(concurring). — On the averments of the verified petition of the state, clearly making a prima facie case for the process and orders prayed, it is my opinion that the writ of certiorari should issue to bring up the record proper (the petition for habeas corpus and the order and judgment of the judge of probate) ; that the rule, nisi should issue to show cause why the order which was made May 24, 1910, should not be vacated, the appeal having theretofore been taken (Kimbrell v. Rogers, 90 Ala. 339" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/kimbrell-v-rogers-6513974?utm_source=webapp" opinion_id="6513974">90 Ala. 339, 7 South. 241), and thereby transferring the matter to the sole jurisdiction and control of this court; and that in order to main*149tain tbe status quo pending tbe disposition of tbe cause, tbe sheriff of Autauga should be directed to retake Boy into custody. The appeal, by tbe state, in such cases does not depend upon tbe perfection of tbe bill of exceptions. Tbe appeal must be taken in 20 days; whereas, 90 days are granted by tbe statute in which to present to tbe trial judge a bill of exceptions. No court can qualify this statutory right.—Sections 3019, 6245, 6247, and 6248, Code 1907. Tbe appeal required tbe suspension of tbe judgment awarding bail.—Section 6245, Code 1907; Ex parte Cameron, 81 Ala. 87" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/ex-parte-cameron-6512612?utm_source=webapp" opinion_id="6512612">81 Ala. 87, 1 South. 20. If tbe appeal was taken, the order of May 24, 1910, was void, and the release of tbe prisoner was wrong. It is tbe plain duty of this court to always preserve its jurisdiction.

Lead Opinion

PER CURIAM.

Let rule nisi issue to the respondent, George S. Livingston, returnable to the next term of this court on Thursday of the week of the first call of the First division, to show cause why the writ prayed for in the petition should not be granted.