Benson v. State

91 Ala. 86

Opinion

STONE, C. J.

At common law, and in several of the States, suits and prosecutions may be discontinued by non-action, by which it happens that terms of the court have been permitted to elapse without any order of the court being made or invoked. In this State the rule is different. A mere failure to enter continuances, or to enter orders at the several terms, is treated as a clerical omission, and does not impair the validity of the proceeding, unless it appears that such failure was brought about by the party instituting the suit or prosecution, •or by his failure to do some act precedent to the right to press the suit or prosecution to a hearing.—Ex parte Owens, 52 Ala. 473; Ex parte Remsen, 31 Ala. 27; Forester v. Forester, 39 Ala. 320; Ex parte N. E. & S. W. Railroad Co., 37 Ala. 679; Malone v Marriott, 64 Ala. 486; Ex parte Holton, 69 Ala. 164; 5 Amer. & Eng. Ency. of Law, 674-5:

It is not shown that Bradley, who instituted the prosecution, did any act to cause the delay, nor is the long delay in effecting the arrest, nor the many returns of “not found,” attempted to be explained. Under the rule declared by this court, we feel bound to hold the prosecution was not discontinued.

Affirmed.