Straughn v. Brake

McCLELLAN, J.

(l) The single error assigned brings into question a ruling of the circuit court in denying appellant’s motion to quash the writ of certiorari, issued by the judge of probate of Escambia county — on petition presented to him by the appellee — to a justice of the peace who had rendered a civil judgment against appellee (defendant there) and against the garnishee. The argument for error is that the writ sought in the petition was a common-law certiorari — not a statutory writ of certiorari, which only, of the two writs of this character, a judge of probate has power and authority to issue. — Code, § 5430; Gray v. Southern Railway Co., 116 Ala. 654, 22 South. 973; Guscott v. Roden, 112 Ala. 632, 636, 21 South. 313.

(2) Regardless of the insufficiencies of a petition for a statutory writ of certiorari, it is the duty of the court to which the statutory writ has removed the cause to proceed to a trial de novo, without reference to the rulings or judgments of the justice of the peace. — Guscott v. Roden, 112 Ala. 632, 637, 21 South. 313.

(3) While there are averments in the petition charging a want of jurisdiction in the justice (though it does not affirmatively appear by any averment of fact that this allegation’s truth would be or was disclosed upon the face of the record in the justice’s court), to render the judgment that would have been appropriate to an appeal, to a proper authority, for the common-law writ of certiorari, there are other averments that consist with a purpose to invite the issuance of a statutory writ of certiorari. The allegation that, after a continuance of the cause by the justice, he, without notice to the defendant (petitioner), rendered judgment against him, thus depriving him of an opportunity to defend, was of this latter category. It further appears from the prayer in the petition that the judge of probate was besought for a writ to require the justice to “certify and return all the-papers and a transcript of the proceedings in said cause to the next term of the circuit court to be held for said county and state, in order that justice might (may) be done in the premises.” Had the prayer intended, though wholly ineffectually, to invoke the issuance of a common-law writ of certiorari, it would not, consistently, have asked for a writ to bring up the record before another tribunal. The order of the judge of probate to the clerk of the circuit court directing him, upon conditions, to issue the writ of certiorari, and the writ'the clerk did issue in consequence of this direction, leaves us in no fair doubt that the circuit court was correct in its conclusion that the writ sought and issued was a statutory writ of certiorari.

There is therefore no merit in the only error assigned.

Affirmed.

Anderson, C. J., and Sayre and Gardner, JJ., concur.