Turnly v. Stinson , 1 Ala. 456 ( 1840 )

THE defendants counsel moved to dismiss the writ of error in this case, because it does not set out the names of all the defendants, but describes them as “John Stinson and others,” while the record discovers the names of two other defendants. This motion comes too late. The defendants have joined in error, and thus waived all objection to the defectiveness of the process by which the case is brought here. Such was the opinion of this court as incidentally expressed in the Tombeckbee Bank v. Freeman, Minor’s Rep. 285; and Koin v. McIlvaine & Collier, 1 Porter’s Rep. 275. It is true, that in Roberts v. Taylor et al., 4 Porter’s Rep. 421, I said that the motion to' dismiss a writ of error “is in time, if made even after joinder in error.’* But that remark was not necessary to the decision of the case, and was made arguendo, without reference to previous decisions;consequently we are not disposed to regard it as authority.

This was a proceeding fora forcible detainer under the statute, commenced before a justice of the peace of Benton. A verdict and judgment was rendered in favor of the plaintiff, for the recovery of the premises alleged to be detained, and the case taken to the circuit court of that county, Where the judgment of the justice was reversed, and judgment rendered against the plaintiff for costs.

Many cases have been here assigned for error, all of which have been abandoned at the bar, but the two following — 1. The' circuit court reversed the judgment of the justice' of the peace, when it does not appear that the case was taken to that court by certiorari. 2. Upon the judgment of reversal, the case should have been remanded to the justice of the peaee.

1. In the circuit court errors were assigned, and the entry of the judgment shows that the parties eame by their attornies, and that the questions of law arising upon the assignment were fully argued. We have held, in several cases, that after a judgment by nil dicit or on verdict, if the record contains no declaration, we would intend either that it had been dispensed with by the parties, or else lost from the files after judgment. So in the present case, the parties having, without objection, submitted their case for the judgment of the court, we must suppose' that they either waived the statutary mode of getting it into court, or that the certiorari has been lost.

2. Upon looking into the complaint we find it not remarkable for precision, or directness in its statements, yet it substantially conforms to the statute. Thejudgment of the circuit court then, should not merely have reversed that of the justice, but should have remanded the case for further proceedings. [Bliss v. Winston, at the last term] is a direct authority upon this point.

J. Cochran, for the plaintiff. Peck, contra.

Thejudgment is reversed and the case remanded, that the circuit court may award a procedendo to the justice of the peace,, or his successor, if he be not now in office.