Portis v. Newman

43 Ala. 506

• Court: Supreme Court of Alabama
• Decided: June 15, 1869
• Status: Published

Opinion

Per curiam.

The appellees submitted a motion to dismiss this case, upon the ground that the certificate of the clerk to the transcript, is defective and insufficient, in not statirig that an appeal was taken, and the time when. To sustain their motion, they refer to the 22d rule of practice of this court, and § 3492 of the Eevised Code.

The appellants resist this motion, and submit a counter motion for a certiorari to the clerk of the court below, to obtain a better certificate, and refer to the case of the Alabama & Mississippi Rivers R. R. Co. v. Hungerford, 41 Ala. 388.

In that case, a similar motion was made and granted, but it was granted for the reason, that such better eertificate.could be made. The transcript in this case fails altogether to show that any better certificate can be made. The bond referred to in the transcript, by the appellants’ counsel, utterly fails to show that an appeal had been taken ; besides, it appears to have been taken by a magistrate, and not by the clerk of the court; and, further, it bears no evidence that it was regularly filed with the clerk, or that it was, in any manner, approved of by the clerk. It may also be stated, that the appellants have already had the benefit of one certiorari, for the purpose of perfecting their transcript, without accomplishing their purpose. The motion for a certiorari must, therefore, be denied.-

The certificate of the clerk altogether fails to comply with the requirements of the Code, and the said rule of practice of this court, and, therefore, the motion of the appellees must prevail.

Let the case be dismissed at tbe costs of the appellants'.