Cullum v. Smith , 6 Ala. 625 ( 1844 )

GOLDTHWAITE, J.

1. The practice, now so generally pursued in this State, of interposing a claim to property, levied on by an execution, instead of an action against the sheriff, for the taking, or against a purchaser under him for its conversion or detention, was introduced by the act of 1812. Although the county court then had jurisdiction over all actions of a civil nature, except real actions, ejectment, and trespass quare clausum fregit, when the matter in controversy did not exceed 1,000 dollars, yet the cognizance of these peculiar suits was restricted to what was then known as the superior court. [Laws of Ala. 117, § 17; ib. 310, § 10.] The entire jurisdiction of that court was transferred to the circuit court upon the organization of our State government in 1819. [Clay’s Digest, 295, § 33.] Since that period, the jurisdiction of the county court has been made concurrent with that of the circuit court, over actions of debt, assumpsit, case, covenant, trespass, and assault and battery, without restriction as to amount. [Clay’s Digest, 297, § 7.]

It is not contended by the plaintiff in error, that there is any specific grant of jurisdiction over this class of suits, but the argument is, that it is necessary and proper that each court should' have jurisdiction of all proceedings consequential upon its own process. This argument would establish too Much, as executions can issue from the court of chancery, and it can not be contended that that court could taire eognizance of such a suit. [Clay’s Digest, 204, § 14.] The orphans’ court too, has the authority to issue executions upon its decrees, for the payment of money. That court, it is true, is held by the same judge, and known by the same name as the county court, but it has no connexion whatever with the jurisdiction attaching to the comity court proper. The act of 1812, which originated the mode of claiming property, was doubtless intended by its framers to give exclusive cognizance to the superior court, of all cases which should arise under executions from the several courts; and no subsequent legislation seems to have taken this jurisdiction away. It consequently remains with the circuit courts of the present time. The case of Gregg v. Hinson, [9 Porter, 631,] has no influence upon this. There the question was, whether the county court could take cognizance of an appeal from atrial of the right of property before a justice of the peace, and it was held, that jurisdiction over appeals from justices coui’ts, was concurrent in the circuit and county courts.

2. The other assignment of error, applies to the refusal to exclude the deposition. This cannot avail the claimant for the reason that such a refusal is not the subject of revision on error.— We entertain no doubt that a court may suppress a deposition, even when the proceedings leading to it have been entirely regular and formal, if, under the peculiar circumstances of the particular case, injustice to the suitor must necessarily or will probably result from using the testim'ony thus procured. But such an application, when the proceedings have been regular under the statutes, is addressed to the sound discretion of the court, and should never be allowed when sprung at the trial, inasmuch as its effect then must be, to take the opposite party by surprise.— Whether the improper suppression of a deposition is a matter which can be reviewed on error, when the suppression is had previous to the time of the trial, is not a question now to be considered, though it is possible the proper course -would be, to compel its reinstatement by mandamus. Taking the case as shewn upon the bill of exceptions, there was nothing to call for the exercise of the discretionary power of the court, as it was not attempted to be shown that any injustice had been, or would be, the consequence of the omission to attend the examination.

Judgment affirmed.