Federal Credit Co. v. Zepernick Grocery Co.

• Decision Date: 21 January 1929
• Docket Number: 27733
• Citation: 120 So. 173,153 Miss. 489
• Court: Mississippi Supreme Court
• Parties: FEDERAL CREDIT CO. v. ZEPERNICK GROCERY CO. [*]

120 So. 173

153 Miss. 489

FEDERAL CREDIT CO. v. ZEPERNICK GROCERY CO. ^[*]

No. 27733

Supreme Court of Mississippi

January 21, 1929

Division B

Suggestion of Error Overruled Feb. 4, 1929.

APPEAL from circuit court of Jones county, Second district, HON. R S. HALL, Judge.

Action by the Federal Credit Company against the Zepernick Grocery Company, instituted in the county court. On certiorari the circuit court reversed a judgment for plaintiff in the county court, and dismissed the action, and plaintiff appeals. On motion to strike the transcript of the evidence, taken and heard in the county court. Motion sustained.

Motion sustained.

Welch &amp Cooper, for the motion.

Shannon & Schauber, opposed.

OPINION

GRIFFITH, J.

Suit was filed in the county court by the appellant against appellee upon a conditional sales contract for the purchase of an automobile truck. There was a judgment for the plaintiff in the county court, and the defendant therein attempted to appeal to the circuit court, but the appeal bond was filed too late, and in consequence the appeal was dismissed. Thereafter, but within the six months allowed, the record and proceedings in the cause were removed to the circuit court under a writ of certiorari, and, as a part of the record so returned into the circuit court, there was included a copy of the official transcript of the evidence taken and heard in the county court. There was a motion in the circuit court on the hearing in certiorari to strike from the return the transcript of the stenographer's notes of the evidence, but the motion was overruled; and the court thereupon, taking into consideration the entire record so removed, including the transcript of the evidence, reversed the judgment of the county court, and dismissed the suit, from which judgment of the circuit court an appeal is brought to this court. The motion to strike the transcript of the evidence has been renewed here, and we now deal solely with that motion.

It is said to be a rule of almost universal application that the writ of certiorari will not issue in those cases in which there is a plain, speedy, and adequate remedy by appeal, which statement is no more than an application of the elementary rule of procedure that an extraordinary remedy will not be allowed when an ordinary remedy is, or has been, fully available. Certiorari cannot be made to serve the office of an appeal, and the rule is not altered by the fact that a party entitled to an appeal has allowed the time for taking it to elapse without availing himself of that right.

"It is essential to the harmony and consistency of every judicial system that each wrong or injustice, whether resulting from acts of individuals or courts, shall have its specific, adequate, and distinct remedy. Therefore it may be stated as a general principle,--which, however, is not by any means uniformly adhered to,--that certiorari does not issue for the rectification of any judicial wrongs or usurpations which may be reached by other methods provided for by law. This rule is subject to the qualification that such other means of redress, in order to constitute a bar, should be adequate to meet the necessities of the case." 2 Spelling, Extra ordinary Relief, pp. 1570, 1571.

It is also the general rule that, under a writ of certiorari, the evidence on which the inferior court based its determination forms no part of the record, and should not be returned, unless required by statute or shall become essential by some extraordinary circumstances; as for instance, where the inferior tribunal acts beyond or in disregard of its lawful jurisdiction. 11 C. J., p. 176; 4 Ency. Pl. & Pr., p. 221; 4 Stand. Ency. Proc. p. 938. But the appellee contends in response to this general rule that our statute...