Opinion
7 Div. 980.
September 12, 1933.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
A. G. Steele was convicted of violating an ordinance of the Town of Oxford, and he appeals.
Appeal dismissed.
McCord McCord, of Gadsden, for appellant.
The appeal bond was entirely void and of no effect, and defendant stood discharged. Code 1923, § 1937.
Merrill, Jones, Whiteside Allen, of Anniston, for appellee.
Section 1937 of the Code may be waived by the action of the parties. Jackson v. Demopolis, 23 Ala. App. 288, 124 So. 401; Castell v. Decatur, 215 Ala. 4, 109 So. 571; Myhand v. Dothan, 19 Ala. App. 167, 95 So. 782. The courts do not favor the rule of a discontinuance or abandonment of the case, especially when based upon mere nonaction of the plaintiff. Roszell v. State, 19 Ala. App. 462, 98 So. 35. The rule as to waiver by a defendant of a discontinuance or abandonment in a cause of action is applicable to criminal cases. Ex parte Hall, 47 Ala. 675. The acts of defendant in this case waived any abandonment or discontinuance which might otherwise have occurred. Collins v. State, 218 Ala. 250, 118 So. 265; Jones v. State, 16 Ala. App. 477, 79 So. 151; Snyder v. State, 18 Ala. App. 188, 90 So. 40; Clanton v. State, 96 Ala. 111, 11 So. 299; Hall v. State, 51 Ala. 9.
This prosecution originated in the mayor's court of the town of Oxford, wherein this appellant was tried and convicted of a violation of a certain ordinance of said town of Oxford. From the judgment of conviction in said court he appealed to the circuit court.
The appeal here is from a purported judgment in the circuit court, and is rested upon the record proper only. On the record before us this appeal must be considered and determined.
As a condition precedent to an appeal from the municipal court to the circuit court by the defendant, he must give bond with good and sufficient sureties, payable to the city, which bond must be approved by the recorder or officer trying the case, conditioned to be void if the defendant appears from term to term of the circuit court until discharged by law to answer said charge. Section 1937, Code 1923. A bond of this character must be a valid bond, and to be valid must be approved by the recorder or officer trying the case in the municipal court. The bond in the instant case in order to be valid and bear efficacy should have been approved by the mayor of the town of Oxford. It bears no such approval, and therefore is void and without force and effect. The circuit court of Calhoun county, as a result of the mayor failing to approve the so-called bond, never acquired jurisdiction of this case, hence the purported judgment rendered in this case, and from which this appeal was taken, is void and will not support an appeal. This is conclusive of this appeal and renders unnecessary a consideration by us of the points of decision undertaken to be presented by the assignment of errors. Upon the record before us we are without authority so to do. Doyle v. City of Mobile, 12 Ala. App. 622, 68 So. 494.
It affirmatively appearing from the record that the circuit court of Calhoun county never acquired jurisdiction of this case, its judgment herein is not legal and will not support an appeal, and under the established rule a dismissal must be ordered.
Appeal dismissed.