On Rehearing
Both parties have moved for rehearing. The City’s motion for rehearing was filed one day late and cannot be considered.
Shuttlesworth, on his part, argues that the form of the request should have been treated alternatively as a petition for writ of error coram nobis.
An appeal in habeas corpus can be alternatively treated by the Supreme Court or this court as an application for leave to proceed for coram nobis in a trial court. This was the mode of entry in Johnson v. Williams, 244 Ala. 391, 13 So.2d 683.
However, in view of the fact that appeal to this court (Shuttlesworth v. Birmingham, 41 Ala.App. 697, 130 So.2d 236) was rendered abortive, a coram nobis alternative in this case, is not available to Shuttlesworth as an original remedy.
In Ex parte Williams, 255 Ala. 648, 53 So. 2d 334, an original application for leave to proceed at nisi prius by way of coram nobis was denied because the Supreme Court, not having entertained an appeal, had no jurisdiction of a request for such leave. See also Ex parte Smith, 265 Ala. 60, 89 So.2d 694, and Ex parte Thomas, 270 Ala. 411, 118 So.2d 738.
On a purported appeal, Bland v. State, 272 Ala. 215, 130 So.2d 385, the record was stricken. Afterwards when an original application for leave to proceed in the circuit court was submitted, the Supreme Court, Ex parte Bland, 273 Ala. 449, 142 So.2d 872, per Merrill, J., said:
“ * * * The State has filed a motion to dismiss the petition on the ground that this court does not have jurisdiction in this cause. The motion must be granted.”
Nor can we consider the circuit court committed error in not treating the habeas corpus application as a petition for a writ of error coram nobis. Allen v. State, ante p. 9, 150 So.2d 399.
The writ in habeas corpus issues when one is in custody virtually as of right. This by reason of common law, stat*38ute and Constitution. The return to the writ is not a traverse of the petitioner’s pleading but is the custodian’s justification to the sovereign as represented by the court. The denial is not res judicata.
Coram nobis on the other hand strikes at a judgment with evidentiary matter outside the record. Hence, the •petitioner must aver well and support the .averments with clear, convincing and satisfactory affidavits to show his claim is just.
See People v. Shorts, 32 Cal.2d 502, 197 P.2d 330, for a statement of the petitioner’s .burden in coram nobis.
In the instant case there were before the -circuit judge many exhibits of law but no sworn presentation of facts which would .have prevented the original judgment.
After the applications for rehearing 'came in, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 was decided : that a parolee of the Commonwealth of Virginia might seek habeas corpus “under 28 U.S.C. § 2241.” Concededly, custody was notional rather than physical. Significant restraints of liberty beyond those common to the general public were listed: (1) community, (2) dwelling, (3) job, (4) motoring, ■(5) company, (6) hours, (7) advice, (8) "honesty, (9) temperance. These restraints ■or their relaxation were attributable to the 'Commonwealth.
Here, Shuttlesworth’s being out of jail is the product of a Federal court’s taking liim from a state (city) jail.
In Accardo v. State, 39 Ala.App. 453, 102 So.2d 913, we adopted a physical basis for habeas corpus. There Accardo’s being in a Federal prison put him beyond the reach of the state courts to seek habeas corpus. Shuttlcsworth, like Saint Paul, has claimed to be judged not by us but by another Caesar.
We consider habeas corpus under Alabama practice is not available in a State court to one on bail granted by a Federal court. The discretionary writ of certiorari is available. Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So.2d 722. But the scope of review on certiorari, even if the circuit court chose to entertain the petition, would not reach the claimed error which led to the original judgment. The original judgment is regular on its face.
On original submission, the City moved for dismissal because of the failure to get the record to this court in thirty days after judgment. This is mandatory under Code 1940, T. 15, § 369, as amended. If the cause were not moot, this statute would furnish an additional ground for dismissal. State v. Patton, 36 Ala.App. 539, 60 So.2d 383; Phillips v. State, 40 Ala.App. 698, 122 So.2d 551.
Should our view of mootness’s preempting all other grounds for dismissal be not well taken, the City’s motion grounded on noncompliance with § 369, supra, is well taken. While this is a conditional statement of reason, yet we consider it to fall within the rule of bifurcate ratio decidendi enunciated by Mr. Justice Simpson in Usher v. Dept. of Industrial Relations, 261 Ala. 509, 75 So.2d 165, and Harden v. United States Fidelity & Guaranty Co., 267 Ala. 321, 101 So.2d 302. Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524.
Application overruled.