The Court of Appeals under the provisions of Section 88, Title 13, Code 1940, has certified for our answer the following two questions: First, whether in view of the Act, Code 1940, Title 7, § 827(1) et seq., abolishing bills of exceptions, the reviewing court on appeal is warranted in refusing to consider a bill of exceptions when no objection to the form of the evidence as therein presented has been taken by the parties or counsel. Second, whether in order to invoke the jurisdiction of the next higher court on appeal from a recorder's court in a prosecution for violation of a municipal ordinance, the transcript must affirmatively disclose the affidavit upon which the accused was first tried in the subordinate tribunal.
The first question is due an affirmative answer and the second is responded to in the negative. We discuss them in order.
First. The above cited act by precise and specific language recites that "Bills of exceptions * * * are hereby abolished." Such a document is now non existent. It is a nullity, an absolutely void thing. Peabody v. State, Ala.App., 18 So.2d 691,1 certiorari denied, Ala.Sup., 18 So.2d 693;2 Spurlock v. J. T. Knight, Ala.Sup., 18 So.2d 685.3 Being so, it can serve no appropriate office on appeal, regardless of whether or not its legal efficacy is challenged by seasonable objection.
Our recent case of Blair v. Greene, Ala. Sup.,18 So.2d 688,4 tended to obviate some of the obfuscity surrounding the act. It was there decided that "if the transcription filed by the reporter should be in narrative form rather than that of question and answer, and no objection interposed thereto before the trial judge, the requirement as to question and answer form will be considered waived." At page 691 of 18. So.2d. The case now before us, however, presents no such situation, inasmuch as no transcription of the evidence was duly certified and filed by the court reporter.
This ruling, however, does not intend to impair the holding that the parties, may submit an agreement on appeal, so as to invoke a review of the rulings pending trial, as was discussed in Grand United Order of Eagles v. Workman, 218 Ala. 37,117 So. 659, and as provided in Section 745, Title 7, Code 1940. See also Thorpe v. Steadman, 226 Ala. 337, 147 So. 131. (In this connection it should be further noted that this court's refusal for a review in. Phillips v. Anderson, 230 Ala. 369,161 So. 477, was because the judgment was the only part of the trial-court record embraced in the transcript, all the pleadings being omitted and said transcript failing to disclose that the question on appeal was properly submitted to and acted upon by the trial court.)
It is noticed that this appeal is from Jefferson County and the question occurs as to the current contention that the act is not applicable to Jefferson County because perhaps the civil division of the circuit court thereof has no "full time court reporter." It is enough to say that the act also embraces Jefferson County. The language of § 827(1), referring to courts "having a full time court reporter," only modifies "all other courts of record" and also applies to such courts, as well as *Page 151 to circuit courts and courts of like jurisdiction. Hence a proper interpretation of this phase of the act is that bills of exceptions in the trial of cases at law are abolished in all the circuit courts, in courts of like jurisdiction, and in all other courts of record having a full time court reporter from which appeals lie directly to the Court of Appeals or the Supreme Court of Alabama.
Second. On appeal from a prosecution in a recorder's court for violation of a municipal ordinance, the record need not disclose the affidavit upon which accused was tried in the inferior court. A written complaint, duly filed by the city attorney, suffices to apprise the accused of the nature and character of the action against him.
While one on trial in a recorder's court for the violation of a municipal ordinance is entitled to be apprised of the nature and cause of the prosecution against him by a written complaint (Mayor, etc., of City of Birmingham v. O'Hearn, 149 Ala. 307,42 So. 836, 11 Ann.Cas. 1131; McKinstry v. City of Tuscaloosa,172 Ala. 344, 347, 54 So. 629), that an accused was arrested and tried in such court without a written complaint (affidavit) does not render the judgment there entered void for want of jurisdiction. Brooke v. State, 155 Ala. 78, 46 So. 491; Sherrod v. State, 197 Ala. 286, 72 So. 540. This for the reason that he may waive the right. 43 C. J. 459.
If the defendant proceed to trial in such court without demanding such complaint he is held to have waived the right and, later on appeal, he cannot for the first time avail of it. Aderhold v. City of Anniston, 99 Ala. 521, 12 So. 472; McKinstry Case, supra; Sherrod Case, supra; Clark v. City of Uniontown, 4 Ala. App. 264, 58 So. 725; Wofford Oil Co. v. City of Russellville, 20 Ala. App. 14, 100 So. 304; Worthington v. City of Jasper, 197 Ala. 589, 73 So. 116; Arzumanian v. City of Birmingham, 165 Ala. 374, 51 So. 645.
In order to abate the proceedings in the appellate court because of the lack of an affidavit before the recorder the transcript must affirmatively show that objection to trial without one was seasonably interposed when accused was arraigned and tried in the recorder's court. No defect in the proceedings, other than want of jurisdiction apparent on the face of them, will subject the cause to dismissal on appeal. To authorize dismissal of the proceedings in the appellate court it must affirmatively appear that the judgment of the lower court was void for lack of jurisdiction. City of Selma v. Stewart, 67 Ala. 338, 340; Casteel v. City of Decatur, 215 Ala. 4,109 So. 571; 43 C.J. pp. 481, 484, §§ 711, 721.
Therefore, unless the transcript on appeal does show a violation of this right to be tried on a proper written complaint it is regarded as having been waived and the objection is unavailing in the court to which the appeal proceeded. Oldham v. Town of Rogersville, 26 Ala. App. 372,160 So. 272; McKinstry and Stewart Cases, supra.
Trial on appeal from a recorder's court is de novo and the entire transcript from the lower court need not be sent up. Bouyer v. City of Bessemer, 17 Ala. App. 665, 88 So. 192. It is held that the jurisdictional recitals of the appeal bond suffice to give the court to which the appeal is taken jurisdiction of the cause (Ex parte McLosky, 210 Ala. 458,98 So. 708; Lee v. State, 10 Ala. App. 191, 64 So. 637), and on appeal the complaint signed by the city prosecuting attorney is regarded as sufficient to satisfy the requisites that the accused is entitled to be apprised of the nature and character of the accusation, although the record does not disclose an affidavit before the recorder. Fealy v. City of Birmingham,15 Ala. App. 367(9), 73 So. 296.
Such appeal cases, where the trials are de novo in the higher court, are distinguishable from the case of Town of Camden v. Bloch, 65 Ala. 236, where the trial was not de novo, but the proceeding there was a common law writ of certiorari issued by the appellate-city court to inquire into questions only "touching the jurisdiction of the subordinate tribunal, and the regularity of its proceedings." At page 239 of 65 Ala. The office of the writ there issued was to correct errors apparent on the face of the record and compliance with the writ by the inferior court necessitated a showing by the transcript submitted of a sufficient affidavit upon which the prosecution was sought to be predicated.
All the Justices concur.
1 31 Ala. App. 448.
2 Ante, p. 32
3 Ante, p. 33
4 Ante, p. 28 *Page 152