Jones v. City of Anniston , 138 Ala. 199 ( 1902 )

TYSON, J.

The defendant was tried and convicted • by the recorder of the city of Anniston for a violation of an ordinance of that city. On appeal to the city court,' a demurrer, as shown by the judgment entry, was sustained to a motion filed by him. What that motion was, in the absence of a bill of exceptions, we can not legally know. It is true it appears in the transcript, but it is not shown to be properly a part of the record of the court below, and therefore we cannot look to it. The judgment on demurrer, therefore, cannot be reviewed. Craig v. Etheredge, 133 Ala. 284; Randall v. Wadsworth, 130 Ala. 633; Cottingham v. Greely-Barnham Co., 129 Ala. 200; Stallworth v. The State, Ib. 118; Moulton v. L. & N. R. R. Co., 128 Ala. 537; Cen. of Ga. R. Co. v. Joseph, 125 Ala. 313; Holley v. Coffee, 123 Ala. 406; Ewing v. Wofford, 122 Ala. 439; A. G. S. R. R. Co. v. Bailey, 112 Ala. 167; R. & D. R. R. Co. v. Jones, 102 Ala. 212; Freider v. B. Goodman Manfg. Co. 101 Ala. 242; Stern v. Collier, Ib. 424; Wiggins v. Witherington, 96 Ala. 535; Hyder v. Adams, 80 Ala. 111; Tuscaloosa Manfg. Co. v. Mayor, 38 Ala. 514. The only case we have been able, after diligent search, to find as opposed to the principle declared in these cases, is that of Powell v. Henry, 96 Ala. 412, in which it is held that “a motion to strike from a file a demurrer is itself a part of the pleading in the cause, constitutes a part of the record proper of the primary court and must be brought here as a part of the transcript of that record, and not as a mere statement of the presiding judge embodied in a bill of exceptions. This is clearly wrong and the case on that point must be overruled.

Under the charter of the city of Anniston (Acts of 1894-95, p. 1055), express authority is conferred upon the police officers of said city to immediately arrest without warrant and to take into custody any and all persons, who shall commit or attempt to commit, in their presence or in their view any offense prohibited by the ordinances of said city. It is also made the duty of the officer, upon such arrest, unless bond be given, to deliver such offender to the city guard house in order that he may be tried by the presiding officers of the mayor’s court at its next sitting.

The demurrer to the special plea (numbered 2) of the defendant was correctly sustained. Whether the matter attempted to be set up, would in a proper case be proper matter for plea, we do not decide.

Affirmed.