Anthony v. City of Birmingham

• Decision Date: 10 October 1940
• Docket Number: 6 Div. 724.
• Parties: ANTHONY v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

198 So. 449

240 Ala. 167

ANTHONY v. CITY OF BIRMINGHAM.

6 Div. 724.

Supreme Court of Alabama

October 10, 1940

Certiorari to Court of Appeals.

Petition of the City of Birmingham for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Anthony v. City of Birmingham, 198 So. 446, where a judgment of conviction for violation of a city ordinance was reversed.

Writ awarded.

Ralph E. Parker, of Birmingham, for petitioner.

Morel Montgomery, of Birmingham, opposed.

FOSTER Justice.

A case pending on appeal by defendant to the circuit court from the recorder's court is triable de novo. Section 1937, Code. When so, as long as it remains in the circuit court, the judgment of the recorder's court is ineffective as such and as jeopardy it stands as though it had never been rendered. 15 Am.Jur. 53, section 378; 43 Corpus Juris 486 note 33. However, the circuit court may dismiss the appeal and thereby reinstate the judgment of the recorder's court. Section 1938, Code, as amended by Act of September 14 1935. General Acts 1935, page 1107. This effected a change in the law as declared in Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406. But unless the appeal is dismissed, the circuit court will dispose of it on the same principles as one begun there, provided the recorder's court had jurisdiction. City of Selma v. Stewart, 67 Ala. 338.

The judgment of the recorder's court and proceedings there finding him guilty are then but a step toward the jurisdiction of the circuit court, and they are effective for no other purpose here involved if the circuit court makes final disposition of it without reinstating the judgment of the recorder's court. See Louisville & Nashville R. R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733.

The question of jeopardy is then controlled by what occurs in the circuit court. If it is nol prossed in that court before jeopardy arises there, defendant is not protected from another trial on the same cause subsequently begun in a court of competent jurisdiction. O'Brien v. State, 91 Ala. 25, 8 So. 560; Walker v. State, 61 Ala. 30; Whitaker v. State, 21 Ala.App. 114, 105 So. 433.

Under circumstances similar to those here involved, the Court of Appeals held that there was no double jeopardy in the cases of Biggers v. State, 20 Ala.App. 632, 104 So. 681, and Treadaway v. State, 18 Ala.App. 409, 92 So. 529, as we understand those cases.

In the case of Clawans v. Rives, 70 App. D.C. 107, 104 F.2d 240, 122 A.L.R. 1436, cited by the defendant, jeopardy had occurred in case No. 1, since...