On December 18, 1917, Z.A. Haynes filed a claim bond in the justice court of T.J. Orr, claiming certain property that had theretofore been levied on by attachment, in a suit wherein A.U. Key was plaintiff and Aaron Key was defendant. So far as the record discloses, there was no affidavit asserting the claim, as required by the statute; but on December 29, 1917, trial was had in the justice court and judgment rendered *Page 230 in favor of the plaintiff, finding that the property was liable to the writ, and a judgment against the original defendant. On January 11, 1918, the claimant having failed to deliver the property described in the claim bond, the bond was forfeited, and recovery was ordered against claimant and her sureties, and execution issued. On February 2, 1918, the sheriff collected from J.D. Haynes, one of the obligors on the bond, $84.35 in full satisfaction of the execution, and made the return to the court. On February 23, 1918, the money was paid to the plaintiff. On February 5, 1918, the clerk of the circuit court issued a writ of certiorari, directed to the justice of the peace, commanding him to certify the cause then pending in his court, wherein "A.U. Key is plaintiff and Z.A. Haynes is claimant." In response to this writ, the justice certified the proceedings as above. On the call of the case in the circuit court, the plaintiff moved to dismiss the cause; one of the grounds of the motion being that the cause had been settled between the parties and the costs paid when the cause was docketed. This motion was overruled. On the trial, the plaintiff offered in evidence the various court papers, judgments, and returns in the justice of the peace court, and requested in writing the general charge. The court refused to admit the evidence, and refused the instruction as requested.
It is insisted, on the part of appellant, that the circuit court was without jurisdiction to try and determine the claim suit. The cause in the circuit court was triable de novo. The affidavit and bond required of the claimant are jurisdictional, without which the court may not proceed. House v. West,108 Ala. 355, 19 So. 913; Mobile Life Ins. Co. v. Teague,78 Ala. 147. The record in this case fails to show a claim for the property, such as would authorize the court to make up an issue. It is only where the writ, affidavit, and bond have been returned into court that the court has authority to make up an issue under section 6040 of the Code of 1907. If there had been an affidavit, and it was lost, the claimant might have substituted it; but this was not done. On the record, as it here appears, without the affidavit, the trial court was without jurisdiction to try the case.
The next question presented is: Was the claim suit pending in the justice of the peace court at the time of the service of the writ of certiorari? Of course, if the claimant paid, or authorized the payment of, the judgment in the justice court, it would have been a settlement of the case, and there would have been no "cause pending" in that court to support the certiorari. But that was a disputed question of fact, and on its submission to the jury the issue was found against the plaintiff. It is true the facts show, without dispute, that J.D. Haynes, one of the obligors on the claim bond, after the bond had been returned forfeited, and Judgment had been entered and execution issued thereon, paid the amount of the judgment and costs to the sheriff, and the sheriff made return to the justice court of the money; but before the money had been disbursed, and while it was in the hands of the court, the writ of certiorari intervened and transferred the entire cause to the circuit court, there to be tried de novo. Guscott v. Roden Co., 112 Ala. 632, 21 So. 313. The claimant still had the right to have her case tried de novo in the circuit court, and, pending that right, her surety could not fix her liability to him by a payment of the judgment without her consent.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.