Ex parte State , 115 Ala. 123 ( 1896 )

McCLELLAN, J.

Under the adjudications of this court, we feel constrained to hold that the case of The State of Alabama v. Noah Stephenson was improperly stricken off the docket of the city court. On the showing made by the judge of that court in response to the rule nisi whatever of irregular action, or omission to act, occurring in the case and resulting in failure to docket the cause prior to 1896, was the action or omission of the clerk of the court with which neither the court ' nor the solicitor had anything to do; and it is well settled that the mere omission of ministerial duty on the part of the clerk in respect of issuing process, docketing the cause, and the like, will not operate a discontinuance of which, the defendant can avail himself.—Drinkard v. State, 20 Ala. 13; Benson v. State, 91 Ala. 86 ; Scott v. State, 94 Ala. 80.

. And it is immaterial whether, the defendant had been held to bail on;preliminary trial before a justice of the peace'to, answer an indictment for the offense at,the ensuing teiun of the city court or not. Granting he had been so bound over,. /the omission tp docket the .cause in the city court upon indictment found is .the dereliction of .the. clerk alone which will not-work a discontinuance .

This case is distinguished from that of Ex parte Stearnes, 104 Ala. 93. by the- fact that an indictment was found here and,-none was returned in that case. The.failure tó have'.the case acted on by the grand jury or to hold .the defendant for 'action by a future grand jury was-not a clerical' or ministerial ■ omission, but the omission o.f 4he prosecuting officer. The failure to docket the cause -when an indictment has been returned is clearly an ' omission of. ministerial duty, and innocuous upon' the prosecution.

The rule nisi will be- made absolute, and mandamus will be awarded, unless upon advi.ee of our action the judge of the city court reinstates the cause on the.docket of that court.

Mandamus awarded.,