Lee v. State

ON APPLICATION POE REHEARING.

The case of Haynes v. State, 5 Ala. App. 167, 59 South. 325, cited by appellant in brief on application for rehearing, was disposed of on the theory that, under a very confused state of the record as shown by the transcript in that case, there was nothing set out tending to show how the circuit court acquired jurisdiction of the case. We are confronted with no such condition in this case, for set out in the transcript before us, in addition to the affidavit and warrant, is a bond executed by the defendant and sureties requiring the defendant to appear in the circuit court that rendered the judgment from which this appeal is prosecuted, and there answer the charge preferred against her. The defendant having .a bond to answer the charge in the circuit court, its recitals are sufficient to give that court jurisdiction. — S. & N. Ala. R. R. v. Pilgreen, 62 Ala. 305; Hardee v. Abraham, 133 Ala. 341, 343, 32 South. 595.

*195Even though the transcript contained nothing showing that the circuit court had jurisdiction to try the case, it could result in no benefit to the defendant on this appeal, for the judgment rendered would be coram non judice, and there being no valid judgment to support the appeal, the proper order to be made in this court would be a dismissal of the appeal. — Gunter v. Mason, 125 Ala. 644, 27 South. 843; Adams v. Wright, 129 Ala. 305, 30 South. 574; Ill. Cent. R. R. Co. v. Burleson, 4 Ala. App. 384, 59 South. 230; Cent. of Ga. Ry. Co. v. Coursen, 8 Ala. App. 589, 62 South. 977.

The fair and reasonable construction of the provisions contained in section 32 of the Fuller Bill (Acts 1909, p. 92), to the effect that, upon appeal from a lower court to the circuit court the appeal shall be in such form and manner and subject to such restrictions as govern appeals under the Code from justices of the peace or county courts, is that such appeals are made subject to, and are to be governed by, those rules and regulations referred to wherein it is not otherwise provided by that section (32) of the act. The statute must be construed as a whole, and effect given, to every provision it contains. — Hawkins v. L. & N. R. R. Co., 145 Ala. 385, 40 South. 293. The plain and unambiguous language of section 32 of this act authorizes prosecutions of this nature to be commenced and tried to a conclusion on an affidavit, no matter in what court the trial is had, and this was overlooked in what was said in Haynes v. State, supra, with reference to an indictment, and the necessity of filing a complaint in the circuit court, and the general rule correctly stated that applied to cases not brought under the influence of this statute.

The application for a rehearing is denied.