Thompson v. City of Birmingham

• Decision Date: 10 May 1928
• Docket Number: 6 Div. 109
• Citation: 217 Ala. 491,117 So. 406
• Parties: THOMPSON v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

117 So. 406

217 Ala. 491

THOMPSON v. CITY OF BIRMINGHAM.

6 Div. 109

Supreme Court of Alabama

May 10, 1928

Petition of James Thompson for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Thompson v. City of Birmingham, 117 So. 403. Writ granted.

Altman Taylor & Koenig, of Birmingham, for appellant.

Horace O. Wilkinson, of Birmingham, for appellee.

SOMERVILLE J.

When a party to a judicial proceeding appeals from the judgment of the trial court to an appellate court, for the purpose merely of reviewing the rulings and judgment of the trial court, the party becomes and remains the actor in the prosecution of the appeal; and, no statute forbidding, the appellate court has undoubtedly the inherent power to dismiss the appeal, if the appellant does not seasonably appear and prosecute it conformably to the prescribed procedure. 18 Corpus Juris 1192.

But when an appeal is allowed by statute from the judgment of an inferior court to a superior court, where the case is to be tried de novo, a different situation is presented. A trial de novo means a new trial "as if no trial had ever been had, and just as if it had originated in the circuit court." L. & N.R.R. Co. v. Lancaster, 121 Ala 471, 473, 25 So. 733, 735; Vinyard v. Republic I. & S. Co., 205 Ala. 269, 87 So. 567; Rowlesburg v. Zelano, 74 W.Va. 142, 81 S.E. 732. As declared in the Lancaster Case, supra:

"The appeal when taken operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment."

The distinction between such appeals and ordinary appeals for review has been well stated by the California Court of Appeals:

"When an appeal from the judgment of a justice's court is taken and duly perfected, by a defendant, upon both questions of law and fact, the case is removed to the superior court for a trial de novo, and the superior court must try the case as if there had been no trial in the justice's court. In such case, the appeal being fully perfected, the plaintiff is the actor in the superior as he was in the justice's court, and it is his duty to bring the case on for trial, and no duty in that respect devolves upon the defendant, although he is the appealing party." Kraker v. Superior Court, etc., 15 Cal.App. 651, 115 P. 663.

To the same effect are Hoelzel v. Kelly (Mo.App.) 291 S.W. 1081, and Reagan v. Louisiana Western R. Co., 143 La. 754, 79 So. 329.

In 35 Corpus Juris, 806, § 514, the rule of procedure is thus stated:

"Under some statutes or rules of court or practice, an appeal from a justice's judgment will be dismissed if appellant fails to appear and prosecute his appeal within the time prescribed, unless he can show a sufficient excuse for such failure, and an appeal may be dismissed on motion of appellant because appellee is not before the court. But in the absence of such statutes or rules an appeal in a cause triable de novo in the appellate court will not ordinarily be dismissed for the nonappearance of appellant or appellee, although the action itself may be dismissed for want of prosecution."

See, also, 43 Corpus Juris, 483, § 715.

The foregoing principles relate to appeals from justices of the peace in civil cases. A fortiori, they are applicable to appeals in criminal cases, no statutes contravening.

The question here presented--the right vel non of the circuit court to dismiss a case appealed to it by a convicted defendant from the recorder's court of Birmingham, when the appealing defendant fails to appear for trial--must be considered and determined in the light of the statutes which prescribe the procedure for such cases.

Section 1937 (1217) of the Code authorizes such an appeal, and requires that "the case appealed shall be tried de novo in such court." Section 1938 (1218) provides that--

"If such defendant fails to appear in the court to which an appeal was taken, when the case is called for trial, unless good cause is shown to the court for his absence or default, the court shall enter up a judgment of forfeiture on said bond against the defendant and his sureties as is authorized or provided by law in criminal cases."

Section 2307 (1451) also provides for appeals from municipal courts to the circuit court from judgments of conviction for the violation of a municipal ordinance or by-law, "to be governed in all respects by the laws regulating appeals from judgments of justices of the peace in criminal cases."

Section 3858 (6743) gives to the defendant convicted of crime in a justice court the right of appeal to the circuit court; and section 3859 (6744) provides that--

The trial on appeal "shall be de novo, and shall be governed in all respects by the rules and regulations prescribed for the trial of appeals from the county court."

With respect to appeals from the county court, section 3841 (6728) provides that--

"If the defendant fails to appear, at the circuit court as required by the appeal bond he shall be liable to the same penalties, forfeitures and proceedings as on a forfeited bail bond taken in the court; and a new warrant of arrest may issue from that court without any other authority therefor."

Thus, by a clear and unbroken chain of reference and adoption, the law has been declared that on appeal to the circuit court by a defendant convicted in a municipal court the trial must be de novo; and, if the appealing defendant fails to appear in the circuit court for trial, he shall be liable to the same penalties, forfeitures, and proceedings as is the defendant on a forfeited bail bond.

Those penalties, forfeitures, and proceedings are mandatorily prescribed by sections 3823-3828 (6711-6716) of the Criminal Code.

Section 3823 declares:

"If the defendant fail to appear as required by his bond, the county court shall enter a forfeiture against him and his sureties [and provides a form for the conditional judgment]."

Section 3824 declares:

"The county judge or clerk *** shall thereupon issue a notice to said defendant, and cause it, together with a copy of the conditional judgment rendered, to be served on said defendant," etc.

Section 3825 declares:

"If the defendant, on being thus notified, fails to appear, or appears but fails to show a satisfactory excuse for his default, and no sufficient cause is shown for a continuance of the case, the court shall render judgment final [and provides a form for the final judgment]."

Section 3826 provides that--

"If the defendant appears and submits to trial, the court may release him and his sureties from any part of the forfeiture which seems just."

Section 3828 declares:

"When a forfeiture has been taken against a defendant and the sureties on his bail bond, it shall be the duty of the court to issue another warrant of arrest against the defendant, upon which the same proceedings shall be had as upon the original warrant."

We have here supplied the italics shown above.

The course of procedure prescribed by these statutes is too plainly mandatory to permit of serious argument. An imperative duty is laid upon the circuit court to rearrest a nonappearing defendant and proceed anew as if there had been no default. This duty, by the very terms of its imposition, is entirely inconsistent with the existence of any discretion in the court to dispose of the case in any other way; that is, of course, so long as the state chooses to continue the prosecution. Here, as in all criminal proceedings, the state may, with the consent of the court, dismiss the prosecution, but it cannot dismiss the appeal, which is a very different proposition.

It must of course be observed that we are dealing only with the case of a perfected appeal from a valid judgment of conviction. Outside of this category there are cases where appeals to the circuit court may and should be dismissed. Dean v. State, 63 Ala. 153; Martin v. State, 156 Ala. 89, 47 So. 104. And in appeals like this a dismissal would be proper, if the required appeal bond had not been given within five days after the judgment. Code, §§ 1937, 2307.

Section 8790 of the Code, providing for the writ of procedendo from appellate courts to justice's courts when ...