A motion is made in this case, “ to strike from the file the transcript, the certificate to which is signed James A. Abrahams, judge of the probate court of Sumter county, on the ground that said Abrahams is not, and was not at the time of signing the certificate, judge of said probate court.” This motion is ovexuled. One sufficient reason for overruling it is,that the right to the office cannot be determined on this motion, and that we must recognize as valid the certificate of the acting judge. Spradling v. State, 17 Ala. 440; Sprowl v. Lawrence, 33 Ala. 674; Heath v. State, 36 Ala. 273; Garner v. Clay, 1 Stewart, 182; Mayo v. Stoneum, 2 Ala. 390 ; Bondurant v. Buford, 1 Ala. 359 ; Flournoy v. Clements, 7 Ala. 535; Cuthbert v. Huggins, 21 Ala. 349.
2. A motion is made to dismiss the appeal, because the citation is not conformable to the statute. We would not dismiss an appeal, on account of the absence or illegality of a citation. But we deem it proper to pass upon the sufficiency of the citation. The citation is in the form of a notice, addressed to the appellees, and is certainly not objectionable on that account; for such a notice is within the definition of a citation. It is contended, however, that the citation is required to be made returnable to the supreme court, by section 3018. The object of that section, in declaring that the citation should be returnable to the supreme court, was not to require that the sheriff serving it should be commanded to make return of it to the supreme court. Section 3022 shows, that the sheriff must return it to the officer issuing it, who is required to com
The motion is overruled.