Alabama G.S.R. Co. v. Christian

• Decision Date: 26 January 1887
• Citation: 82 Ala. 307,1 So. 121
• Parties: ALABAMA G. S. R. CO. v. CHRISTIAN.
• Court: Alabama Supreme Court

1 So. 121

82 Ala. 307

ALABAMA G. S. R. CO. v. CHRISTIAN.

Supreme Court of Alabama

January 26, 1887

Appeal from circuit court, Hale county.

Application for writ of certiorari.

The petition in this case, which was sworn to and filed February 17, 1886, alleges "that on the fifteenth day of January 1886, a judgment was rendered against said corporation, in favor of one W. C. Christian, by JOHN H. JACK, Esquire, a justice of the peace, for the sum of $85, and also $3.10 costs, in a suit then pending before said JOHN H. JACK, *** claiming damages for the wrongful and negligent killing of a mule *** by a train of said defendant; that said action sounded in damages, and the damages claimed thereby for the wrong or injury alleged to be done to the plaintiff, and rendered in said judgment, exceeded the sum of fifty dollars and your petitioner avers that said judgment" was null and void, because said justice had no jurisdiction thereupon. The petition was denied, and appellant prosecutes this appeal.

Thos. R. Roulhac, for petitioner.

Coleman & Coleman, contra.

STONE C.J.

The appellee, Christian, sued the appellant railway company, before a justice of the peace, claiming damages for the alleged wrongful and negligent killing of a mule, the property of plaintiff. The justice gave judgment in favor of plaintiff, for $85 damages, besides the costs. Such are the averments of the sworn petition presented by the railway company to Hon. JOHN MOORE, the presiding judge of the Fourth judicial circuit, which embraces Hale county. The prayer of the petition was and is to have the proceedings before the justice certified up to the circuit court, and there quashed and vacated, on the alleged ground that the justice had no jurisdiction of such tort; the sum in controversy being in excess of $50. The circuit judge denied the writ, and the case is brought before us by appeal from his ruling.

Will common-law certiorari lie in such a case as this? Certiorari at common law is an extraordinary legal remedy. It can be invoked only when there is a legal right, and no other adequate legal remedy. "When an appeal lies, certiorari is not the proper remedy." Case of Borough of Warwick, 2 Strange, 991; The King v. Harman, Andrews, 343; 2 Wait, Act. & Def. 134, 135; Edgar v. Greer, 14 Iowa, 211. And this writ will not, in general, be issued "where the party has a remedy by appeal to correct the irregularity or injustice of which he complains." 2 Wait, Act. & Def. 138; 2 Bouv. Bac. Abr. 163, 165. And this doctrine is sustained by the following adjudged cases: Farrell v. Taylor, 12 Mich. 113; Storm v. Odell, 2 Wend. 287; In re Mount Morris Square, 2 Hill, 14; People v. Supervisors of Queens Co., 1 Hill, 195; Ruhlman v. Com., 5 Bin. 24; Phillips v. Phillips, 8 N. J. Law, 122; Savage v. Gulliver, 4 Mass. 171; Mackaboy v. Com., 2 Va. Cas. 268; Trigg v. Boyce, 4 Hayw. (Tenn.) 100; Bob v. State, 2 Yerg. 173; Witkowski v. Skalowski, 46 Ga. 41; People v. Shepard, 28 Cal. 115; The King v. Jackson, 6 Term Re. 145.

So, in Alabama, " certiorari is a revisory writ, and may be issued by a superior, to correct the erroneous action of an inferior, court, where the law has provided no remedy by appeal." Benton v. Taylor, 46 Ala. 388; Ex parte Buckley, 53 Ala. 42; Town of Camden v. Bloch, 65 Ala. 236. "It is a general rule of the common law that a writ of error will not lie when the court whose judgment is complained of acts in a summary manner, or in a new course different from the common law. In such case the writ of certiorari is the appropriate remedy; or, as the rule is sometimes expressed, where a new jurisdiction is created by statute, and the court exercising it proceeds in a summary method, or in a course different from the common law, a certiorari is the only proper remedy to revise its action." 1 Brick. Dig. 333,§§ 2, 4, 5.

it cannot be questioned that, in this case, the defendant railway company had the right of appeal, and that on such appeal the question of jurisdiction could have been raised. Burns v. Henry, 67 Ala. 209, which collects the authorities. The judge of the Fourth judicial circuit did not err in refusing the writ of certiorari.

We are aware that in Glaze v. Blake, 56 Ala. 379, there is a statement which is not reconcilable with what is decided above. That remark was not called for by anything raised by the record. We think it unsound in principle, and opposed to the great weight of authority. We fear it misled counsel in this case; and, if left as an authority, it may mislead in other cases. We would not be inclined to disturb it if it simply declared a rule of practice. It has a deeper significance,-deeper, because trial de novo on appeal is much more conservative in its results than the unbending judgment of validity or nullity which must follow in common-law certiorari. That remark was unadvisedly made, and must be overruled.

We have no wish to unsettle or question the...