Opinion
7 Div. 563.
June 11, 1940.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Petition by Burnard (or Burnett) Morris against the State for habeas corpus. From an order or judgment denying the writ, petitioner appeals.
Appeal dismissed.
E. W. Harmon, of Anniston, for appellant.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
In absence of a statement of the evidence, it will be presumed that the finding of the circuit judge and denial of the writ was without error. Alabama Code, 1928, § 3238; Pruitt v. State, 24 Ala. App. 340, 135 So. 310; Ex parte Horan v. State, ante, p. 141, 193 So. 195. There is no formal judgment or solemn adjudication such as will support a review, and appeal should be dismissed. McDonald v. Alabama Mid. R. Co., 123 Ala. 227, 26 So. 165; Wilbanks, v. Mitchell, 239 Ala. 167, 194 So. 513; Mobile C. T. Co. v. Dees, ante, p. 180, 194 So. 419; Perry v. State, 4 Ala. App. 70, 59 So. 230.
This attempted appeal seeks to challenge the action of the Circuit Judge of Calhoun County in denying the writ prayed for in appellant's petition for writ of habeas corpus. It appears from the record that petitioner is in custody of the Sheriff of said county by virtue of arrest under warrant issued by the Governor of Alabama on request of the Governor of the State of Georgia. Uniform Criminal Extradition Act, Gen.Acts of Alabama 1931, p. 559.
The appeal is upon the record alone, there being no duly authenticated statement of the evidence as prescribed for such procedure. (Gen.Acts 1927, pp. 76, 77, No. 113.) This record is fatally deficient in that no formal judgment of the court below is made to appear. In such condition, the record will not support a review.
There being no such solemn adjudication of the litigable matters here involved as will support a review by this court, the appeal is due to be dismissed and it is so ordered. McDonald v. Alabama Midland Rv. Co., 123 Ala. 227, 26 So. 165; Wilbanks v. Mitchell et al., Ala. Sup. 194 So. 513; Mobile Cigar Tobacco Co. v. Dees, Ala. App. 194 So. 419; Perry v. State, 4 Ala. App. 70, 59 So. 230; Tom Campbell v. State, Ala. App., 195 So. 775; 4 C.J.S., Appeal and Error, page 331, § 153(c).
Ante, p. 180.
Ante, p. 343.
Appeal dismissed.