Harris' Heirs v. Harris' Adm'r , 41 Ala. 364 ( 1867 )

PER CURIAM.

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 communicate the citation to the supreme court. No other view of sections 3018 and 3022 would make them harmonious. The object of section 3018 was, simply to indicate that the citation was legally possessed of the quality of being transmissible or returnable to the supreme court, and of becoming evidence to that tribunal of the notification of the appellees. The form of the citation, it may be remarked, has the sanction of long usage. Section 3022 is awkwardly expressed, and somewhat confused; but we understand it to authorize the inclusion of a copy of the citation in the transcript, and to make the certificate, that the transcript is a complete transcript of all the proceedings in the cause, evidence to this court of the citation as copied. The citation, and its service, are included by the phrase “proceedings in the cause,” within the meaning of that phrase in section 3022. While a copy of the citation may be embraced in the transcript, nevertheless the original may be transmitted to this court; for, by section 3018, it is made returnable to this court. With this view of the two sections of the Code above noticed, we have recently adopted a rule of practice, requiring the original citation to be sent to this court, if it is not attainable for insertion in the transcript. It is of great importance that the citation and its service should, when practicable, be inserted in the transcript; for, as we have no final record, there would be no evidence of the service, except on detached paper, unless the citation and the return of service are copied in the transcript.

The motion is overruled.