Moog v. Doe ex dem. McDermott

• Citation: 145 Ala. 568,40 So. 390
• Parties: MOOG v. DOE EX DEM. MCDERMOTT ET AL.
• Decision Date: 17 February 1906
• Court: Supreme Court of Alabama

40 So. 390

145 Ala. 568

MOOG v. DOE EX DEM. MCDERMOTT ET AL.

Supreme Court of Alabama

February 17, 1906

Rehearing Denied April 3, 1906.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by John Doe, on the demise of J. McDermott and others against Delphine Moog. From a judgment for plaintiffs defendant appeals. Reversed.

Irvin &amp McAleer, for appellant.

Bestor Gray & Bestor, for appellees.

DOWDELL J.

The plaintiff's claim of title to the land in question is based upon judicial proceedings had against one John J. A. Swain, terminating in the sale of the land under a writ of venditioni exponas issued from the city court of Mobile and the purchase by the plaintiff at said sale. These proceedings were commenced by attachment issued from the justice of the peace court, and which was regularly levied on the land. The proceedings had in the justice court, including the return of the constable of the levy of the writ on the land, were duly certified and returned into the city court of Mobile, where subsequent proceedings were had on motion for an order of the court for a sale of the lands so levied on. The defendant objected to the introduction in evidence of the proceedings so had in the city court of Mobile on the ground that said court was without jurisdiction. This objection was overruled by the trial court and the evidence admitted, to which ruling the defendant excepted.

Section 2 of an act entitled "An act to confer civil jurisdiction upon the city court of Mobile" (Acts 1871-72, p. 109), reads as follows: "Be it further enacted that from and after the passage of this act jurisdiction in civil causes (except in actions to try titles to land) be and is hereby conferred upon the city court of Mobile county and all powers of a civil nature now exercised by the circuit courts of the state and the judges thereof, be and are hereby conferred upon the city court of said county and the judge thereof." Section 944 of the Code of 1896 is as follows: "Unless otherwise provided by law, the city courts and the judges thereof have and exercise all the jurisdiction and powers of the circuit court and the judges thereof; and, when invested with equity jurisdiction, have and exercise all the jurisdiction and powers of the chancery court and chancellors." In section 481 of the Code of 1896, relating to appeals from the justice of the peace court, it is provided that the appeal may be taken to the "circuit court, or court of like jurisdiction." In section 1947 of the Code, which relates to proceedings where a levy is made on land under execution from the justice court, the provision is that the justice shall "thereupon transmit all the papers in the cause to the next circuit court, or court having like jurisdiction." Section 574 of the Code of 1896, which relates to levy of attachment on land issued by a justice of the peace, provides as follows: "When such attachment is levied on real estate, notice must be given as provided for by section 1948 (3360) and the papers after judgment against the defendant, must be returned to the clerk of the circuit court by the justice for an order of sale, as in other cases of levy on lands by constables." It will be observed that the provision, "or other court of...