Chappell v. State , 156 Ala. 188 ( 1908 )

McCLELLAN, J.

In our opinion the prisoner should be discharged. The affidavit exhibited with the petition, to which, alone, on this record, the attaching of the jurisdiction of the justice of the peace can be referred, and out of a hearing of which the mittimus presented by the sheriff issued, omitting other unimportant features, avers that the affiant “has cause to believe and does believe that in Ms opinion” (italics supplied) the defendant unlawfully delivered liquor in a prohibitory district. — In Butler’s Case, 130 Ala. p. 129, 30 South. 338, treating a practically similar affidavit, it was said: “Such a complaint-will not support the judgment of the justice, nor the statement filed by the solicitor in the county court, nor the judgment of the county court. * * * No valid judgment can be rendered on this complaint.” — Johnson’s Case, 82 Ala. 29, 2 South. 466; Miles’ Case, 94 Ala. 106, 11 South. 403. Butler was discharged here. If a valid judgment could not be rendered on a trial upon such a complaint, certainly a mittimus issued would be likewise a nullity. The reason underlying this ruling is that jurisdiction does not attach.

The prisoner must be discharged, as is expressly provided by the statute: “(3) Where the process is void in consequence of some defect in matter or substance required by law.” Code 1896, § 4838; Code 1907, § 7033. Mere irregularity will not avail,' since habeas corpus is not serviceable to review the action of a tribunal having acquired jurisdiction. — Ex parte McGlawn, 75 Ala. 38.

Tyson, O. J., and Simpson, Anderson, and Denson, JJ., concur.