
    Swain v. The State.
    
      Murder.
    
    (Decided November 28, 1912.
    Rehearing denied January 13. 1913.
    60 South. 961.)
    1. Appeal and Error; Time of Talc-inn Appeal. — Tinder section 2870, Code 1907. an appeal taken on April 27. 1912, was properly dismissed where no transcript was filed, nor certificate of appeal taken, or any other method of docketing the case or prosecuting the appeal was pursued during the term of the Court of Appeals, which adjourned on the last day of June 1912, in pursuance of section 5, Acts 1911, p. 450.
    2. Same.- — Section 2870, Code 1907. has reference by the use of the term “unless otherwise provided” to other statutes fixing the time when appeals in particular classes of cases are returnable, and does not extend the time or term to which the appeal is returnable to conform to the time allowed by statute for preparing the bill of exceptions and having the same signed.
    
      3. Same. — Under section 2870, the defendant should file with the clerk of the Appellate Court a certificate of appeal, whereupon the case may tie docketed and continued on a showing made that the time for making and haying signed the bill of exceptions, where there is a bill of exceptions, and preparing the transcript has not expired.
    Appeal from Walker Law and Equity Court.
    Heard before Hon. T. L. Sowell.
    John Swain was convicted of murder in tbe second degree and be appeals.
    Appeal dismissed on motion of tbe Attorney General, and on application for a rebear-ing, wbicb was denied, tbe opinion herein was written.
    Aouee & Finch, for appellant.
    Counsel discuss tbe case on its merits, but in view of tbe opinion, it is not deemed necessary to bere set it out. On tbe question of tbe time of taking tbe appeal, and of tbe action of the court in dismissing tbe same, counsel cite sections 2870, 6255, 3019, Code 1907; Powell v. The State, 59 South. 328.
    B. C. Brickbll, Attorney General, and W. L. Martin, Assistant Attorney General, for tbe State.
   PELHAM, J.

Tbe appeal in this case was dismissed on motion of tbe appellee, the state of Alabama, acting through its duly constituted officer for that purpose, tbe Attorney General. The motion was based on tbe ground that tbe appellant bad failed to file tbe transcript in time, and bad not taken any steps looking to a prosecution of tbe appeal in this court during tbe period tbe appeal was returnable bere. Tbe appellant has filed an application for rehearing, insisting that tbe order of dismissal entered on tbe Attorney General’s motion was improperly made.

Tbe transcript in this case was filed bere for tbe first time on November 23, 1912, during tbe present November term, 1912, of the court, that commenced on the 11th day of November, 1912; and the record shows that the appeal in this case was taken on April 27, 1912. The case was returnable under the statute (Code, § 2870) to the previous term of this court that adjourned, by operation of law, on the last day of June, 1912 (act approved April 18, 1911 [Laws 191Í, p. 450] § 5, 1 Ala. App. 10, 11). No transcript or certificate of appeal having been filed, or other method pursued of docketing the case or prosecuting the appeal, in this court during the term to which the appeal was returnable, legal cause for a discontinuance had occurred; and, on the timely motion of the Attorney General, duly made, to dismiss the appeal because of this discontinuance, the motion was necessarily granted, and an order to that effect followed.— Winthrow & Gordon v. Woodward Iron Co., 81 Ala. 100, 2 South. 92; Sears v. Kirksey, 81 Ala. 98, 2 South. 90; Powell v. State, 5 Ala. App. 150, 59 South. 328; Savannah Williams v. State, 6 Ala. App. 16, 60 South. 416; So. Ry. Co. v. Abraham Bros., 161 Ala. 317, 49 South. 801; Porter v. Martin, 139 Ala. 318, 35 South. 1006.

The appellant contends that the words used in section 2870 of the Code, “unless otherwise provided,” have reference to the statutes providing for a preparation of the transcript by the clerk and the time allowed for signing a bill of exceptions, and argues that if section 2870 is not so construed, in connection with these statutes, as to extend the time or term to which the appeal is made returnable, and thereby make the provisions of this statute conform to the time allowed for preparing the transcript and having the bill of exceptions signed, the unsuccessful party, desiring to appeal, will often be prevented from exercising the right of appeal.

Section 2870 provides when appeals in all cases shall be returnable unless by the special provision of some statute, it is otherwise provided with reference to a particular class of cases, as, for example, Avas provided by the following section (2871) with respect to appeals from an order appointing, or refusing to appoint, a receiver. This statute, making appeals returnable at a certain time or to a certain term of the appellate court, can neither be abridged nor extended by the statutes making provision for the preparation of a transcript and alloAving time for preparing, presenting, and having signed a bill of exceptions. The statute is in a different chapter of the Code from the other statutes making provision for the transcript and bill of exceptions, and it is the return time of the appeal only that is dealt Avith by this statute. It is the duty of the unsuccessful party, if he desires to perfect an appeal, to have it returned or docketed in the appellate court, to AAdiich the appeal has been taken, by some proper procedure or method within the time required by this statute, whether the time for presenting and having signed a bill of exceptions has or has not expired. Many appeals are taken on the record alone, Avithout a bill of exceptions; and, in such cases, the statutes making provision for the time of presenting and having signed a bill of exceptions could have no meaning in connection with the statute providing Avhen appeals are returnable. Rut whether the transcript is or is not to contain a bill, and Avhether the time for signing has or has not expired, the party taking the appeal must comply with the provisions of section 2870 as to the time provided for the return of the appeal to the court of review, for the right of appeal is purely the creature of statute, and the time and manner of exercising the right in a given cause, being prescribed by statute, must be strictly followed to be available to the party seeking the statutory benefits conferred. — White v. State. 134 Ala. 197, 32 South. 320.

If tbe transcript is to contain a bill of exceptions, and tbe time allowed for signing tbe bill bas not expired, or will not permit of tbe preparation of tbe transcript in time to comply with this statute, tbe party appealing is not thereby prevented from exercising bis right of appeal, but, on tbe contrary, bas only to file a certificate of tbe appeal; and upon this tbe case can be docketed and continued on proof of these facts. But unless some appropriate action (there are several methods) be taken by tbe unsuccessful party to bring bis appeal into tbe appellate court within tbe return time provided by section 2870, then a hiatus takes place in tbe proceedings looking to the appeal, and a legal cause for a discontinuance occurs.

This case is brought directly within tbe statute and tbe'rule by this court and tbe Supreme Court in tbe decisions above cited. The motion of tbe Attorney General must prevail, and tbe application for a rehearing is denied.

Application for rehearing overruled.  