State Ex Rel. Davenport v. Austin

RICE, J. A prosecution, for the‘offense of bastardy, was begun against appellee, under and in pursuance to the provisions of chapter 85 of the Code of 1923 (sections 3416-3439). When the ease reached the circuit court, that court, for reasons deemed by it sufficient, granted appellee’s motion to “strike the complaint and bond in the (this) cause and quash the proceedings,” etc., by an order made and entered on March 18, 1931. Thereafter, on April 29, 1931, this appeal was taken by the state, the “security for the costs of the appeal,” filed by the prosecutrix in the case, under the provisions of Code 3923, § 3439, reciting that said security was given because prosecutrix desired to appeal “from the ruling of the Circuit Court of Lauderdale County etc. dismissing said cause out of said court on motion of the defendant (appellee),” etc. As appears, the appeal was taken more than 30 days (the time prescribed by Code, § 3439, supra) from the date of the judgment sought to be reviewed. We have no discretion out to grant the motion to dismiss the appeal duly filed here by appellee, as, indeed, it would be our duty in the absence of any motion to dismiss- the same. Boshell v. Phillips, 207 Ala. 628, 93 So. 576. And it is so ordered. Appeal dismissed.