ROBERTSON v. STATE, 263 Ala. 309 (1955)

82 So.2d 403

Henry ROBERTSON v. STATE of Alabama.

6 Div. 909.Supreme Court of Alabama.
September 15, 1955.

Appeal from the Circuit Court of Jefferson County, Robert J. Wheeler, J.

Paschal P. Vacca, Birmingham, for appellant.

John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State.

LAWSON, Justice.

This appeal is from a judgment of the circuit court of Jefferson County rendered in a habeas corpus proceeding ordering appellant remanded to the custody of the Sheriff of Jefferson County to be delivered to the authorized agent of the State of New York.

The Attorney General has moved for dismissal of the appeal because the transcript does not contain a statement of the evidence and the judge’s ruling thereon, “certified to be correct by the judge or officer hearing the petition.” Such a certificate is required by Code 1940, Title 15, § 369, as amended by Act No. 50, approved June 10, 1949, General and Local Acts 1949, p. 75. Failure to comply with this requirement has been held to be mandatory and to call for dismissal of the appeal in cases of this kind, where the appeal must be taken and perfected in accordance with the terms and provisions of § 369, Title 15, as amended, supra. McTyre v. State, 258 Ala. 637, 64 So.2d 601, and cases cited. But such a certificate is not required in habeas corpus proceedings involving custody of a minor child where appeal may be taken under provisions of § 754, Title 7, Code 1940, which section relates to appeals in civil cases. Lynn v. Wright, 252 Ala. 106, 42 So.2d 489.

This appeal is due to be dismissed. It is so ordered.

Appeal dismissed.

LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.

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