N. Felis & Co. v. Royal Harness & Saddlery Co.

• Decision Date: 19 January 1911
• Citation: 170 Ala. 160,54 So. 504
• Parties: N. FELIS & CO. v. ROYAL HARNESS & SADDLERY CO.
• Court: Alabama Supreme Court

54 So. 504

170 Ala. 160

N. FELIS & CO. v. ROYAL HARNESS & SADDLERY CO.

Supreme Court of Alabama

January 19, 1911

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Petition by N. Felis & Co. for a common-law writ of certiorari to review the action of F. T. Perkins in rendering a judgment against the petitioner was denied, and an appeal taken. Affirmed.

Kruempel & Walsh, for appellant.

Hogan &amp Steele, for appellee.

SAYRE J.

Upon hearing appellant's petition for a common-law writ of certiorari, which sought to review the action of F. T Perkins in rendering what purported to be a judgment against the petitioner, a formal judgment was passed in the law and equity court denying the writ. This appeal followed.

The common-law writ of certiorari is one of the means by which the supervisory jurisdiction of superior tribunals is exercised over inferior, reaching only to the jurisdiction of the subordinate tribunal and the regularity of its proceedings. Camden v. Bloch, 65 Ala. 236; McAllilley v. Horton, 75 Ala. 491. The office of the writ is to correct errors of law apparent on the face of the record. The petition states that Perkins was neither a de jure nor a de facto justice of the peace. In that case his so-called judgment was brutum fulmen, having no authority or appearance of authority. There was no record--nothing to review--and the writ of certiorari was properly denied.

But the petition also states that the judgment against the petitioner was rendered by "Perkins as justice of the peace of said county." If this be taken to mean that Perkins was assuming to act as a justice of the peace under some bona fide color of authority, and so was a de facto justice of the peace, still the writ was well refused, for the reason that no error is shown on the face of the record. Errors committed in the admission of evidence, such as are alleged in the petition, do not appear upon the record, nor do they show any abuse or excess of jurisdiction. Such errors are not to be reviewed, unless by appeal, or, if the right of appeal be lost without fault, then by statutory certiorari, the cause being removed to the superior court in either case for trial de novo. Camden v. Black, 65 Ala. 236; A. G. S R. R. Co. v. Christian, 82 Ala. 307, 1 So. 121.

If the purpose was to try Perkins' right to the office of justice of the peace, that was a purpose which could not be served by the writ of...