Dissenting Opinion.
Watkins, J.Relator obtained final judgment against Isam Henry on the 29th of October, 1885, for his debt and cost; and, under execution, caused to be seized, in satisfaction thereof, among other things, a lot of seed cotton.
This cotton the constable had ginned, packed and advertised for sale.
On the 14th of November, 1885, R. H. Smith filed in the district court a third opposition suit, claiming a preference on the proceeds of the sale of the cotton, on the ground that he was a creditor of the judgment debtor for necessary plantation supplies furnished.
This case was transferred to the justice court, and judgment was rendered thereon the 29th of April, 1886, for the proceeds of sale and the cost of opposition.
Subsequently the constable demanded of the relator, as the plaintiff in the original suit, payment of $27.75 cost, incurred therein.
Of this he paid $17.40, and refused to pay $10.35 as excessive, illegal and not approved. The items objected to were for hauling, weighing and ginning the said cotton, and the bagging and ties furnished.
At the request of the constable, and with the assent of third opponent, the respondent issued an execution under the judgment in the third opposition suit, and directed it against relator, judgment credit- or in the original suit, and thereunder the constable seized relator’s property.
*971This sale he enjoined on the ground that said cost was' not legal and demandable of him, and could not be enforced against him by execution.
The respondent dissolved this injunction, and ordered the sale to be proceeded with, and relator made application for certiorari, with a view to test the validity of the execution for cost and proceedings thereunder.
While it is true that respondent had full and complete jurisdiction over the injunction suit, which relator had invoked in his own favor; and that all the rules of proceedure and the forms of law were therein pursued; yet, relator’s complaint of the issuance of the execution, by the respondent, in a cause in which there was no judgment against him, and for the recovery of costs not approved, and not taxed as cost, contradictorily with him, and not covered by the fee bill — stands out clearly and prominently.
Relator did not apply for a writ of prohibition, and, consequently, no question is raised with regard to the respondent’s jurisdiction. C. P. 845, 840, 851.
The application for certiorari necessarily admits his jurisdiction.
The writ only' commands him to send to this court a certified copy of his proceedings, in order that their “ validity may be ascertained.” C. P. 855.
The writ is only granted when “'the suit is to be decided in the last resort, and when there lies no appeal, by means of which proceedings absolutely void might be set aside,” C. P. 857, 864 ; or when final judgment has been rendered, and execution has issued. C. P. 866.
In the latter ease, the writ of certiorari will arrest the execution, until the validity of the proceedings can be determined.
If, upon an examination of the record, the proceedings appear to be null and void, “and have not been sanctioned by the party complaining of them,” it is the duty of this court to “ avoid the proceedings, and direct the inferior judge to try the case cmew, in conformity with the provisions of the law.” C. P. 864.
The execution issued for a sum less than $10, and hence, an injunction against it, by the debtor in the writ, could not be appealed to the district court. The amount sought to be collected, was below the lower limit of its appellate jurisdiction. Const., art. 111.
This is the test of its appellate jurisdiction. 9 Ann. 236; 12 Ann. 784; 13 Ann. 150; 18 Ann. 398; 16 Ann. 47; 21 Ann. 307; 36 Ann. 423.
The judgment rendered by respondent was final, and unappealable.
*972A suit seeking to compass the nullity of an execution, as one that was illegally issued, cannot be regarded as a sanction of it.
The Code clearly contemplates recourse being first sought by the relator, in the court having jurisdiction of his demands; and that the stage of such suit must be “in the last resort/’ or judgment must have been actually rendered therein, when certiorari is applied for.
I-Iis pursuit of that relief was not a sanction of the action, or execution.
The case at bar bears no analogy to the State ex rel. Zuberbier & Behan vs. Judge, 33 Ann. 15, wherein relators were shown to have voluntarily appeared, and made answers as garnishees, in response lo a citation, afterwards objected to as illegal.
Instead of sanctioning the execution, the relator enjoined and resisted its enforcement.
In State ex rel. Geale vs. Recorder, 30 Ann. 450, Manning, C. J., said that C.P.857 “was framed expressly for those cases where there was no appeal, and where the inferior court was of last resort,” by means of which, proceedings absolutely void might be set aside.
In State ex rel. DeBuys vs. Judges, 32 Ann. 1256, an application was made “ for a certiorari, to ascertain the validity of certain proceedings by which the relator was sentenced for a contempt of court, to an imprisonment of ten days and to pay a fine of fifty dollars.” The relator complained that he had been arrested, under an order of court, and without a hearing condemned, and sentenced without notice, and that same was illegal.
The Court, quoting from High of Extraordinary Legal Remedies, the following — “the right to a hearing is absolute, and cannot be denied in a court of any grade,” — said: “ Where the forms of law in such respect have not been observed, the proper remedy is by certiorari.’’’
The paramount law of the land provides that “no person shall be deprived of life, liberty or property without due process of law.” U. S. Const. Amend., 5.
In the present case no proceeding had ever been taken against the relator to ascertain and tax the costs in dispute, as is plainly required by R. S. 750. Those claimed of him fall within its provisions. This was a condition precedent to their recovery of plaintiff in the suit of Gooch vs. Henry, wherein same were engendered.
In State ex rel. Houston vs. City, 30 Ann. 82, it was held that “u'here disputed, the sheriff’s account is but a claim, and until acknowledged by a final decree of a competent court, that claim cannot be enforced by mandamus.”
*973In Beauz vs. Price, 14 Ann. 187, it was held: “ Where the plaintiff has recovered judgment, the proceeding to render his property liable in execution for cost is statutory, and the form of the statute must be strictly pursued, under pain of nullity."
When the respondent issued a writ of execution under the judgment in the third opposition suit against relator, who, as plaintiff in another suit, had obtained judgment for cost against Henry — without notice to him and without any judgment authorizing it — he was guilty, in my opinion, of an abuse of legal proceedings, and thereby enabled the constable to seize relator’s property without due process of law.
His subsequent judgment dissolving the relator’s injunction no more rendered the execution legal, than did the sentence of the judge for contempt, or the decree of the recorder punishing a violation of the lottery statute.
I am of the opinion that this Court has ample authority, in the exercise of its supervisory power, to declare the respondent’s proceedings absolutely void, and to direct him “to try the case anew, in conformity with the provisions of the law.”
Eor these reasons, I dissent from the opinion of the Court.