72 So. 601 | Ala. Ct. App. | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
DeWitt Worrell was under indictment, and the state offered, before proceeding to trial, to substitute a part of the record. The court granted the motion and defendant appeals. Reversed and remanded.
(1-3) This is an appeal under section 5744, Code 1907, from an order of the circuit court substituting a part of the record in a pending cause. On a like appeal under the provisions of section 2652 of the Code of 1896, corresponding with section 5744, supra, it was ruled that an appeal would not lie under that section in advance of final judgment in the cause. — Ala.City, Gadsden Attalla Ry. Co. v. Ventress,
(4) There is no pretense that the defendant was served with notice of the proceedings, other than the filing of the motion with the clerk and the entry thereof upon the motion docket. Such notice is not sufficient where the defendant or his attorney resides in the county. In such cases the statute requires one day's notice to the party or his attorney. — Code 1907, § 5740. Here the validity of the judgment against direct attack is dependent upon constructive notice, and, in such cases "the facts constituting a compliance with the statute must be proved to and found by the court to have been done; and on appeal the record must show it." — McMahan v. Browne,
There is nothing in the order of the court showing that the defendant or his solicitor were not residents of the county. If the defendant or his attorney resided in the county, one day's notice, "accompanied with a copy of the paper offered as a substitute," was essential to sustain the order of substitution. It is only where the defendant and his attorney or solicitor are nonresidents of the county that notice may be given by filing the motion; and the fact of such nonresidence must be found by the court and entered in the order. — Code 1907, § 5740; McMahan v. Browne, supra.
The order of substitution is reversed and annulled and the cause remanded for further proceedings in accordance with the statute.
Reversed and remanded. *129