On Rehearing. Learned counsel for appellee urge that the appeal was not taken as required by law and should therefore be dismissed. The argument, however, is not persuasive.
The pertinent provision of the statute is: "Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court or the court of appeals; and when, on habeas corpus, any person held in custody * * * for extradition as a fugitive from justice from any other state, is discharged from said custody * * * the solicitor or other prosecuting officer or attorney may take an appeal on behalf of the state to the supreme court or court of appeals," etc. Code of Alabama 1940, Title 15, Section 369.
Honorable George C. Johnson, "Solicitor of Limestone County, Alabama", appears by the record to have interposed and taken the appeal. This satisfied the requirements of the statute.
Nor was the effectiveness of the appeal destroyed by the superfluous and inept allegation, appearing of record, that the sheriff likewise prayed for an appeal. This is treated as mere surplusage.
The application for rehearing is overruled.
Opinion extended and rehearing denied.