
    PORTIS et al. vs. NEWMAN AND WIFE.
    [MOTION TO DISMISS APPEAL.]
    1. Appeal; for failure to state what, in cleric’s certificate, will he dismissed. On an appeal, if the clerk, in his certificate to the transcript, fails tosíate “that an appeal was taken and the time when,” the case will, on motion of appellee, be dismissed.
    2. Same; certiorari, when will not he granted. — In such a case, a certiora/ri to obtain a better certificate will not be granted, unless it appears from the transcript, or otherwise, to the satisfaction of the court, that a better certificate can be made.
    Appeal from the Circuit Court of Clarke.
    Tried before the Hon. J. K. Henry.
    The appellees move the court to dismiss the appeal in this case, because the certificate of the clerk to the trans-script does not show that any appeal was taken, and because the transcript does not give tbe court jurisdiction of the case. The clerk’s certificate to the transcript first filed, is as follows :
    “State of Alabama, i I hereby certify that the foregoing Clarke county. ) is a true, complete, and correct transcript of the proceedings in the case of Newman v. Portis' et al.. This 12th day of December, 1868.
    “Attest: N. B. Wilson, Clerk of the Circuit Court.”
    In return to a certiorari, the clerk sent up the same proceedings, &c., as in the first transcript, with the following certificate:
    
      “ State of Alabama,) In the ease of Neiuman v. Portis Clarke county, j et al., I, N. B. Wilson, clerk of the circuit court, in said county and State, do hereby certify that the foregoing pages, from one to six, inclusive, contain a true and correct transcript of the proceedings in aforesaid case, as taken from the records in my office. In witness whereof, I have hereunto set my hand, and the seal of my office, this February 10th, A. D. 1869.
    “ N. B. Wilson, [L. S.]
    “ Clerk of the Circuit Court, Clarke county, Ala.”
    The appeal bond referred to in the opinion, was signed in the presence of “ W. W. Armistead, J. P. & James W. Gordon,” and does not appear to have been approved by the clerk, or filed in his office. The bond is not dated.
    Chilton & Phelan, for motion.
    S. J. Cummings, contra.
    
   Per curiam.

The appellees submitted a motion to dismiss this case, upon the ground that the certificate of the clerk to the transcript, is defective and insufficient, in not statirig that an appeal was taken, and the time when. To sustain their motion, they refer to the 22d rule of practice of this court, and § 3492 of the Eevised Code.

The appellants resist this motion, and submit a counter motion for a certiorari to the clerk of the court below, to obtain a better certificate, and refer to the case of the Alabama & Mississippi Rivers R. R. Co. v. Hungerford, 41 Ala. 388.

In that case, a similar motion was made and granted, but it was granted for the reason, that such better eertificate.could be made. The transcript in this case fails altogether to show that any better certificate can be made. The bond referred to in the transcript, by the appellants’ counsel, utterly fails to show that an appeal had been taken ; besides, it appears to have been taken by a magistrate, and not by the clerk of the court; and, further, it bears no evidence that it was regularly filed with the clerk, or that it was, in any manner, approved of by the clerk. It may also be stated, that the appellants have already had the benefit of one certiorari, for the purpose of perfecting their transcript, without accomplishing their purpose. The motion for a certiorari must, therefore, be denied.-

The certificate of the clerk altogether fails to comply with the requirements of the Code, and the said rule of practice of this court, and, therefore, the motion of the appellees must prevail.

Let the case be dismissed at tbe costs of the appellants'.  