Ex parte Owens
Supreme Court of Alabama
This was an application for mandamus to compel the judge of the 8th judicial circuit (Hon. H. D. Clayton) to strike from the docket the case of the State v. Owens, on the ground that it had been discontinued. The petition shows that the petitioner was indicted for assault and battery at the Fall term, 1868, of the circuit court of Pike, and at that term gaye bond for his appearance as required by law.
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This was an application for mandamus to compel the judge of the 8th judicial circuit (Hon. H. D. Clayton) to strike from the docket the case of the State v. Owens, on the ground that it had been discontinued. The petition shows that the petitioner was indicted for assault and battery at the Fall term, 1868, of the circuit court of Pike, and at that term gaye bond for his appearance as required by law. The case was regularly continued from term to term until the Fall term, 1869. At the Spring term, 1870, there is an order in the minutes continuing’ all cases not disposed of, but these minutes…
1Per curiam
The record does not disclose a discontinuance of the prosecution. When a cause civil or criminal is regularly introduced into a court of record, although continuances from term to term are not regularly entered as they ought to be, and a failure to enter them is a gross dereliction of clerical duty, they are presumed, unless the record discloses some act of the party plaintiff, by which a chasm in the proceedings is produced. Drinkard v. The State, 20 Ala. 9; 2 Brick. Dig. 369, § 112.
The failure of the presiding judge to sign the minutes of the court does not affect the validity of the…
2Cases cited2 opinions
- Drinkard v. StateSupreme Court of Alabama · 1852
- Jones v. ScottSupreme Court of Alabama · 1841
3Cited by8 opinions
- Lewis v. MartinSupreme Court of Alabama · 1923
- Raine v. StateTennessee Supreme Court · 1920
- City of Mobile v. Board of Revenue and Road Com'rsSupreme Court of Alabama · 1929
- Smith v. StateSupreme Court of Alabama · 1907
- Wright v. StateAlabama Court of Appeals · 1915
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