Hudgins, et al. v. Pickens County

Hudgins, et al. v. Pickens County. Assumpsit. (Decided June 10, 1913. Rehearing denied July 8, 1913. 62 South. 995.) 1. Appeal and Error; Assignment; Necessity. — Where the record ou appeal contains no asignment of error so as to present the rulings of the trial court for review, the judgment will be affirmed for want of assignment. 2. Same; Transcript; Preparation; Sufficiency. — Where the transcript of the record is loosely tied together, contains no seal of the court, is not prefaced hy an index, and does not set forth essential facts necessary to vest the court with jurisdiction, a rehearing will not be granted to permit the assignment of errors notwithstanding the courts do not favor dismissal of appeal for defects in the mode and manner of their presentation. 3. Same; Record; Organization of Oourt. — Where the record of appeal contains nothing to show the organization of the court rendering the judgment from which .the appeal is taken, this court is without jurisdiction to entertain it, and such an appeal will he dismissed. Appeal from Pickens Circuit Court. Heard before Hon. Bernard Harwood. • Assumpsit by Pickens County against L. C. Hudgins, Judge of Probate, and tbe sureties on his bond to collect tbe balance due tbe county for a certain mortgage tax. Judgment for- plaintiff, and defendant appeals. Affirmed. Curry & Robinson, and Oliver, Verner & Rice, for appellant. On tbe original brief counsel discuss tbe merits of tbe case. On application for rehearing, appellant filed an affidavit showing that the transcript of tbe record was made up and forwarded to this court by tbe clerk of tbe circuit court without giving tbe attorneys an opportunity to see it or assign errors, and that at tbe call of tbe division, tbe wife of one of tbe members of tbe court having died, there was no call at tbe regular time. Tbe call was continued until Thursday of. that week; tbe briefs were forwarded to be filed with tbe cause, and it was supposed that error bad been properly assigned, and they insist that although tbe transcript was not properly prepared, that it conclusively showed that tbe county bad no authority to maintain tbe suit.in its own name, and that therefore, there was nothing to support the judgment rendered, and the court would not do such a vain and useless thing as to affirm a judgment that found no support in tbe complaint. — State v. Em- eat, 123 Ala. 631; L. & N. v. Williams, 113 Ala. 402 ; Thomas v. State, ex rel., 58 Ala. 365. It is the duty of this court to assert and maintain the prerogatives of the state, and to prevent the usurpation thereof by others. — Wisconsin v. Cunningham, 15 L. R. A. 561. Patton & Patton, for appellee. The county had the right to maintain an action of the character here in its own name. — Secs. 2473, and 5415, Code 1907; Morrow v. Wood, 56 Ala. 1; Dudley v. Chilton, 66 Ala. 393; State v. Adler, 123 Ala.-87. The State Board of Compromise had no right or authority to settle or compromise debts due to the county. — Sec. 130, Code 1907; Morrow v. Wood, supra. No errors are assigned of record, and hence, the court Avill not consider any matter in the record, and will affirm the cause. [MAJORITY — PELHAM, J. —] PELHAM, J. — There is neither an assignment of errors nor anything that purports to be an assignment of errors on the record, and the judgment of the court beIoav must be affirmed for failure to comply with the rule requiring an assignment of errors on the transcript to present the rulings of the trial court for review. — Civil Code, p. 1506, rule 1. Affirmed. [REHEARING] ON APPLICATION FOR REHEARING. Courts do not favor the dismissal of appeals for defects in the mode or manner of their presentation, and on the showing made and arguments advanced for appellants in the application for a rehearing in this case we should be inclined to look favorably on the request urged upon us to permit a withdrawal of the submission for the purpose of assigning errors on the trans-script, to the end that the case be considered on its merits, if it were not for the condition in which we find the transcript. It is loosely tied together without any attempt at sealing, contains no seal of the court from the judgment of which the appeal purports to have been taken, and is not prefaced by an index of its contents, as required by law. — Code, § 2848; miles Nos. 26, 29 (Code, pp. 1512, 1513). But, aside from all of these deficiencies, the transcript is so totally defective as not to set forth the essential facts necessary to vest this court with jurisdiction to pass upon the questions sought to be presented. Even if we should grant the appellants’ request and allow the submission to be withdrawn in order that errors might be assigned upon the transcript, it could avail the appellants nothing, for, if errors were properly assigned, under the rulings of the Supreme Court the appeal would have to be dismissed because of the failure of the transcript to show that the judgment appealed from was rendered by a court organized pursuant to law. The record shows no organization whatever of the court from the judgment of which the appeal is prosecuted, and, this essential fact not being shown, a dismissal would necessarily follow. — Pensacola, A. & W. Ry. Co. v. Big Sandy Iron Co., 147 Ala. 274, 41 South. 418; Thomas v. Daniel Bros., 42 South. 623; McPherson v. Wiggins, 40 South. 961. See, also, Grantham v. State, 3 Ala. App. 168, 57 South. 1025, and City of Demopolis v. Atkeison, 4 Ala. App. 278, 58 South. 684, in which cases this court has, as is its duty, followed the holdings of the Supreme Court in the above-cited cases on this proposition. The contention in the application for a rehearing that the court should consider the matters presented by the record, without an assignment of errors, is without merit, and, even if meritorious, for the reasons above given could not be considered. Application for rehearing overruled.