Beach v. Lavender Bros.

• Decision Date: 19 November 1903
• Citation: 138 Ala. 406,35 So. 352
• Parties: BEACH v. LAVENDER BROS.
• Court: Alabama Supreme Court

35 So. 352

138 Ala. 406

BEACH v. LAVENDER BROS.

Supreme Court of Alabama

November 19, 1903

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Certiorari by George W. Beach to review an alleged judgment rendered in justice's court in favor of Lavender Bros. From a judgment quashing the writ, petitioner appeals. Reversed.

Jos. T Collins, Jr., for appellant.

John H Miller, for appellees.

McCLELLAN C.J.

Lavender Bros. sued Beach in a justice court for a sum of money within the justice's jurisdiction, alleged to be due by account. Defendant was duly served, and appeared by attorney. The cause was tried by a jury in the first instance; that is without having been tried, and judgment rendered by the justice, and appeal therefrom to a jury. The jury made the following deliverance in writing: "We, the jury, find for the plaintiff, and render judgment for twelve and 10/100 dollars and costs. R. C. Burns, Foreman." No judgment was entered upon his docket by the justice, as required by section 2688, on the jury's verdict, but, it seems, the jury's deliverance was transcribed on the justice's docket. At this stage of the proceedings, five days after the trial, the defendant presented to the city court of Birmingham the following petition, duly verified: "Your petitioner, G. W. Beach, respectfully represents that on the 28th day of September, 1901, judgment was rendered against him in favor of Lavender Bros. by R. C. Burns, foreman of the jury in justice court of W. A. Williams, East Lake, Alabama for the sum of $12.10 damages and $10 costs, in a suit there pending before said W. A. Williams, J. P., wherein the said Lavender Bros. were plaintiffs, and G. W. Beach defendant; and petitioner alleges that there are errors apparent on the record, showing that said judgment was erroneous, unjust, and unwarranted, in this: That same was rendered by R. C. Burns, foreman of a jury, before same had ever been tried by a justice of the peace without a jury, and without any appeal to a jury; because same does not show that defendant was served with three days' notice prior to said judgment; third, because no proper judgment was rendered. And petitioner represents that the exhibit hereto attached, marked 'B,' is a complete transcript of the proceedings before said justice in said case, and prays that it be made a part of this petition. Thereupon petitioner prays for an order for the issuance of a writ of certiorari and supersedeas in said cause to said W. A. Williams, returnable to the next term of the city court of Birmingham, * * * in order that justice may be done in the premises." An order was made as prayed, and the writ was issued. The plaintiffs, Lavender Bros., interposed to this petition a demurrer, assigning these grounds: "(1) Because defendant does not aver in said petition that he does not owe the debt, or any part thereof, for which judgment was rendered; (2) because it is not averred that defendant has any defense to this...