
    Carmichael, President &c. v. Matthews, Clerk &c.
    
      Petition for Mandamus.
    
    1. Cleric's fees; recording of caption of an indictment. — The caption of an indictment should be copied along with the charging part of the Indictment into the final record thereof; and for copying such caption into the final record, the clerk is entitled to the fees prescribed by statute.
    2. Same; order setting date for trial, judgment and sentence. The order setting a day for the trial of a capital case, the judgment on verdict rendered therein and the sentence pronounced on the judgment are all necessarily entered upon the minutes of the court, and neither of them has any place in the final record required by the statute (Code, § 934, Subd. 9); and, therefore, the clerk is not entitled to fees for copying the same into the final record.
    Appear from tlie City Court of Montgomery.
    Tried before tbe Hon. A. 1). Sayre.
    Tbe proceedings in this case were bad upon a petition filed by tbe appellee, H. H. Matthews, as clei*k of the city court of Montgomery and addressed to tbe Hon. A. I). Sayre, judge of said city court.
    It was averred in said petition that on January 27, 1902, one George Scott was duly convicted for murder in tbe first degree and sentenced to the penitentiary for life That said sentence was in full force and operation at the time of filing tbe petition. That presently, after the conviction of Scott, tbe petitioner as clerk, made out the bill of costs in said cause containing no item not enumerated in section 1 of tbe Act approved February 18, 1887, providing for tbe payment of sp.-ch costs out of the convict fund, (Code, § 4511) and made oath to tibe correctness of each item of tbe bill of costs; that the same is a legal charge against said Scott, and that said bill of costs amounted in the aggregate to less than ■ $150. That after said convict had been delivered to the penitentiary officials, the petitioner presented said bill of costs to J. M. Carmichael, as president of the Board of Convict .Inspectors, and asked that he request the Auditor to draw his warrant upon the State-Treasurer in favor of the petitioner for the amount of said bill of costs, payable out of the convict fund; that the said Carmichael, after carefully examining said bill of coats, refused to make the request of the Auditor, as asked, upon the ground that the bill contained under the head of “Final Record” an item for which cost is charged at the rate of 15 cents per 100 words and denominated “Organization of court and grand jury,” and another item under the same head deaHoaninated “order setting d'ay judgment on verdict and sentence,” for which costs are charged at 15 cents per 100 words. That the entire costs for each of said items did not exceed $2.50. That under the ruling of the said Carmichael the petitioner would be denied compensation fori recording all the matters above set forth, with the exception of the indictment.
    The prayer of the petition was that a writ of mandamus be issued compelling J. M. Carmichael, as president of the Board of Inspectors of Convicts, to request the Auditor to' draw his warrant upon the State Treasurer, in favor of the petitioner for the amount of said bill of costs, payable out of the covict fund.
    J. M. Carmichael waived the issuance of the rule nisi, and admitted the truth of the allegations of the petitioner; but denied that the petitioner was entitled to compensation as claimed.
    On the hearing of the cause, there was an order granting a peremptory writ of mm damns a-s prayed for in the petition. From this order the respondent appeals, and assigns the rendition thereof as error.
    J. M. Carmichael, for appellant,
    cited Code, § 134, subd. 9, § 2644; Skinner v. Dawson, 87 Ala. 348; Morgan v. State, 19 Ala. 558; Reeves v. State, 20 Ala. 33; State v. Murphy, 9 Port. 487; PerJwis v. State, 50 Ala. 154; Overton v. State, 60 Ala. 75; Harris 1). Haynes, 30 Mich. 140; 9 Bacon’s Abridgements; 23 Am. & Eng. Ency. of Law, (1st ed.) 358, 361; Sprowl v. Lawrence, 33 Ala. 674.
    W. L. Martin, contra,
    
    cited, Ansley v. Carlos, 9 Ala. 973; Stevenson v. Moody, 85 Ala. 33; 1 Brick. Dig. 497, §§ 505-697; lb. 829. § 348; Ooerton v. State, 60 Ala. 73.
   McCLELLAN, C. J.

The caption of an indictment is an essential and inherent part of it. It is that entry of record showing when and where the court was held, who presided as judge:, the venire for the grand jury, and who were summoned and sworn as grand jurors.— Code, § 4893; Goodloe v. State, 60 Ala. 93, and cases there cited. Being thus a part of each indictment, the entry should, in our1 opinion, be copied along with the charging part of the indictment into the final record thereof.

Bub-section 9 of section 934 of the Code makes it the duty of the clerks of the cireuit (and city) courts “to record in well bound books, within six mouths after the final determination of any suit or prosecution all the proceedings relating thereto, not previously recorded under section 2644 except the subpoenas, affidavits for continuance; commissions to take testimony, evidence and executions.”

Bection 2644, here referred ito, is limited by its express terms to-civil cases, and has no bearing on this case.

Bection 2642 of the Code is, however, not so limited and it applies to both civil amid criminal cases. It is as follows: “Double records dispensed with. — The orders, judgments and decrees entered upon the minutes of the court are parts of the record of the case to which they pertain, and need not bo copied into the final record. If so copied, no fee shall he charged therefor.” The order setting a day for the trial of a capital case, the judgment on verdict therein and the sentence pronounced on the judgment are: dearly within the provisions of this section. They are each and all necessarily entered upon the minutes of 'the court, and neither of them has any place in the final record required by sub-section 9 of section 934 for making which the act of February 18, 1897, provides compensation to the clerk from the State. So far as that act ivas intended to provide compensation for entries of judgments on the minutes of the court, the intent is conserved by other provisions fhaim that in relation to compensation for making final record. — Acts 1896-7, p. 1532.

It follows that, in our opinion, the city court erred in awarding the Avrit of mandamus to' compel the president of the board of convict inspectors to request! the auditor to pay the clerk for making a final record of the order setting a day for the trial of the convict Scott and of the judgment of conviction and sentence thereon in his case. The judgment of the city court will be reversed, and a judgment) will he here entered dismissing the petition for mandamus.

Reversed and rendered.  