4 Div. 938.

99 So.2d 701 (1957)

Edwin O'NEAL v. The STATE of Alabama.

Supreme Court of Alabama.

Rehearing Denied January 23, 1958.

Attorney(s) appearing for the Case

J. Fletcher Jones, Andalusia, for petitioner.

John Patterson, Atty. Gen., opposed.


The judgment of the circuit court was affirmed by the Court of Appeals without an opinion. There seems to be no question that the clerk of that court did not comply with Supreme Court Rule 16, Code 1940, Tit. 7 Appendix in that neither the defendant nor his attorney were given notice when the record was filed in the Court of Appeals.

We cannot agree with the Court of Appeals in the statement that "It is our view that Rule 16 should be held to apply only in cases based upon an actual controversy, and that it should have no application in cases such as this, * * *." Rule 16 applies in every criminal case, and there is no authority for the clerk of any appellate court to determine whether the case is based upon an actual controversy. His duty is to comply with the rules, give prescribed notices and submit causes to the court at proper times. Error was committed by submitting this cause to the Court of Appeals without notice as required by Rule 16.

However, it is our opinion that the error did not constitute reversible error in this particular case, and that the result reached by the Court of Appeals is correct. As stated by that court on rehearing, the defendant entered a plea of guilty; the appeal was on the record proper; that record was searched carefully for error and the proceedings were found regular in every respect.

In view of these findings, the procedural error complained of has not injuriously affected any substantial right of the petitioner and the judgment should not be reversed. A reversal of the judgment in this cause would be useless and serve only to delay the affirmance of the judgment of the circuit court.

Writ denied.



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