Morris v. Beall

• Decision Date: 07 January 1889
• Parties: MORRIS v. BEALL.
• Court: Alabama Supreme Court

5 So. 252

85 Ala. 598

MORRIS v. BEALL.

Supreme Court of Alabama

January 7, 1889

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

Petition by F. W. Beall, filed before the judge of the criminal court of Jefferson county, for a writ of prohibition restraining John Morris, a justice of the peace, from taking jurisdiction of a civil proceeding. On final hearing the writ was made absolute, and Morris appeals.

B M. Allen, for appellee.

SOMERVILLE J.

The present appeal is taken from a judgment of the criminal court of Jefferson county granting a writ of prohibition against a justice of the peace, restraining him from taking jurisdiction of a civil proceeding. It is contended that the judge of this court has no power to grant a writ of prohibition in such a case, which is the exercise of a civil as distinguished from a criminal, jurisdiction. The argument is that the act approved February 18, 1887, entitled "An act to establish the criminal court of Jefferson county," (Acts 1886-87, pp. 835-841,) purports on its face to confer jurisdiction only in matters of criminal procedure, and that the clause contained in section 2 of the act, which provides "the judge shall have and exercise all the jurisdiction and powers which are or may be hereafter lawfully exercised by judges of the circuit courts of the state," is foreign to the title of the act, and not clearly expressed in it, and that for this reason it is void for repugnancy to section 2 of article 4 of the constitution which declares that "each law shall contain but one subject, which shall be clearly expressed in its title." Const. 1875, art. 4, § 2; Code 1886, p. 26, and cases there cited. We may admit this contention for the purposes of this case, and yet the judgment must be affirmed, for the following reasons:

There are but two errors assigned, and the question of the constitutionality of the law is not raised by either of them. The first assignment of error is based on the overruling by the court of a plea in abatement to the jurisdiction of said court "on the ground that said judge had no right to hear and pass on any civil matter." The form of the plea is not set out in the record, nor is it stated upon what ground it was overruled by the court. We cannot say, without an inspection of the plea, that the court erred in overruling it. It may have been defective, in substance, for various reasons, or may have been filed too late....