Max J. Winkler Brokerage Co. v. Courson

• Decision Date: 08 April 1909
• Citation: Max J. Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 So. 341 (Ala. 1909)
• Parties: MAX J. WINKLER BROKERAGE CO. v. COURSON.
• Court: Alabama Supreme Court

49 So. 341

160 Ala. 374

MAX J. WINKLER BROKERAGE CO. v. COURSON.

Supreme Court of Alabama

April 8, 1909

Rehearing Denied May 11, 1909.

Appeal from Circuit Court, Jefferson County; J. H. Miller, Special Judge.

Action by the Max J. Winkler Brokerage Company against George Courson.From a judgment for defendant on trial de novo after bringing the case up by certiorari to review a judgment for plaintiff by confession, plaintiff appeals.Reversed, and judgment rendered quashing writ.

M. M Ullman, for appellant.

F. S Ferguson, for appellee.

SIMPSON J.

In this case a suit was commenced by the appellant, in the "inferior court of Birmingham," against the appellee.W. T. Ward, an attorney at law, appeared for the defendant, accepted service, and confessed judgment, and the judgment entry in that court recites that the defendant appeared "by his attorney in fact, W. T. Ward, who under and by virtue of the authority offered in this cause, confesses judgment," etc., "and it is therefore considered and adjudged by the court that the said W. T. Ward, as such attorney in fact for the defendant, has full and legal authority to confess judgment."Afterwards the defendant filed his petition in the circuit court, asking for a writ of certiorari, stating that said W. T. Ward had no authority to appear for him, that he had no notice of the pendency of the suit until some time after the judgment was rendered, and praying for the writ, requiring the judge of the inferior court to certify the proceedings "to the end that the same may be duly revised."On this petition the writ was granted.A motion was made to quash the writ, which was overruled by the court, and the action of the court was excepted to.The plaintiff then filed his complaint.Pleas were filed to the same, to some of which demurrers were sustained.Plaintiff declined to take issue on the pleas, and a judgment was rendered for the defendant.It is from this judgment that the appeal is taken.

At common law the writ of certiorari was issued by the superior court, to the inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority.The only judgment was to quash the proceedings, or sustain the same.6 Cyc. 737 et seq., and authorities infra.Chapter 73 of the Code of 1896 provides how certiorari and other remedial writs of a supervisory nature shall be applied for and granted, and for the practice therein, but does not provide for granting any other relief than that recognized by the common law, nor does it authorize the writ in any additional case.On the contrary, section 2833 provides particularly that the common law remains the same, and that "the true intent and meaning of this chapter being [is] to provide a plain, more speedy, and less expensive, mode of procedure in all cases to which it applies."That chapter, then, does not furnish any authority for a certiorari, to operate as an appeal, bringing up the case for a trial de novo.In treating of the subject of appeals from justices of the peace, the Code of 1896 provides that cases brought up to the circuit court, by appeal or certiorari, shall be tried de novo (Section 488).As stated by this court in a previous case, such proceedings by certiorari, bringing up for review cases from courts of justices of the peace, constitute "nothing more nor less than appeal by indirection."Anniston Loan & Trust Co. v. Stickney,132 Ala. 587, 31 So. 465.It necessarily follows that, even as to cases in the justice of the peace court, a case can be brought up by certiorari only in cases from which an appeal could have been taken.

We find no provision in the statutes for a similar proceeding, with regard to any other court; but, as shown, if the right to such proceeding attaches to a case tried in the inferior court of Jefferson county, it would attach with the same limitation.So far as the record of the inferior court shows, it was judicially ascertained that the attorney in fact had the authority to confess the judgment, and it follows that, until that judgment is set aside by some judicial proceeding, it stands as a valid and binding judgment between the parties, and, being such, neither party could, by an ex parte proceeding, without a judicial investigation, on the mere allegation of matters de hors the record, have that judgment set aside.If it is a nullity, there is nothing to appeal from; if it is merely erroneous, it must be governed by the rules relating to appeals.Section 477 of the Code of 1896 provides that "a confession of judgment is, in law, a release of errors."An appeal does not lie from a judgment by confession.Wilson v. Collins,9 Ala. 127;Murphree v. Whitley,70 Ala. 554.

As to what is the proper remedy, when a judgment has been confessed, without...