Opinion
6 Div. 787.
October 14, 1936.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Bastardy proceeding by the State against Robert Borden. From an adverse judgment, the defendant appeals, and the appeal was dismissed. On motion to set aside order dismissing appeal, and overruling application for rehearing, and to reverse and remand order.
Motion granted.
Mullins Deramus, of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., for the State.
This proceeding is in bastardy and is purely statutory, and, while the statute (Code 1923, § 3422) requires that the proceedings shall be brought in the name of the state, a bastardy proceeding is not a criminal case in the meaning of the statute (Code 1923, § 3528), which dispenses with the assignment of error in criminal cases taken from a lower court to the appellate court on appeal. The measure of proof and other proceedings are as in civil cases. It is permissible, while the case is pending, to allow the respective parties in such proceedings to consent to a settlement thereof.
In this proceeding, we are informed that a settlement satisfactory to both parties has been agreed upon and motion is here made, concurred in by the respective parties, that the case be remanded to the lower court for dismissal in said court, if and when the parties thereto have reached satisfactory agreement and entered into a consent settlement.
In this connection the following agreement has been entered into and filed in this court, to wit:
"In the Court of Appeals of Alabama
"Sixth Division — No. 787
"Robert Borden, Appellant, v. The State of Alabama, Appellee.
"Appealed from the Circuit Court of the Tenth Judicial Circuit of Alabama.
"Agreement
"It is agreed by and between the parties to this cause that the same may be reversed and remanded, the State of Alabama confessing error on the appeal, and to that end that the judgment of the Court of Appeals dismissing the appeal may be set aside and vacated, and the judgment overruling the application for rehearing set aside and the application granted.
"It is agreed that the foregoing orders may be made so that an agreement of settlement between the parties may be carried out by consent judgment in the lower court.
"[Signed] A. A. Carmichael
"Attorney General for the State of Alabama
"[Signed] Harsh, Harsh Hare
"Attorneys for Louise Hammock, Prosecutrix
"By [Signed] Francis Hare
"[Signed] Mullins Deramus
"Attorneys for Appellant (Defendant) Robert Borden
"By [Signed] Clarence Mullins."
The foregoing agreement and motion having been duly considered is hereby granted. The "order of dismissal" heretofore made is set aside and the cause restored to docket.
The cause is remanded to the lower court in accordance with the foregoing.
Order of dismissal set aside. Cause remanded to lower court.