Walters v. Rogers , 9 Ala. 834 ( 1846 )

GOLDTHWAITE, J.

1. We doubt whether the refusal of an inferior court to award a certiorari to amend or perfect a record, is the subject of revision by writ of error; but, however this may be, we think it was properly refused under the circumstances of this case. The, statute makes it the duty of the justice to enter upon his minutes, or docket, the admission of evidence objected to, and the rejection of evidence offered, (Dig. 253, § 16,) and the party ought not to be prejudiced by his omission, especially when afterwards he enters it in conformity with the statute. In this case there seems no reason to suppose that any matter was introduced improperly upon the justice’s minutes, and therefore another certiorari would have produced no other than the sarpe record. No diminution of the record being shown, there was no ground to award a certiorari.

2. The complaint is perhaps defective in omitting to show the estate which the plaintiff claimed in the premises; and certainly is so, in not showing that the plaintiff had the actual possession at the,time of the defendant’s entry. [Childress v. McGehee, Minor, 131.] This, defect in the complaint made it demurrable, and the justice, instead of overruling the demurrer should have sustained it, and dismissed the complaint if not amended. As an amendment will be necessary for this cause, it will be well for the party to consider whether the description of the premises may not be rendered more precise and certain.

3. Much of the evidence rejected was admissible. The party complains of a forcible entry and unlawful detainer, and it was entirely competent for the defendant to show in answer to the first part of the charge, that his entry was peaceable. The distinction in the statute between forcible entries and forcible and unlawful detainers, is adverted to and discussed in Botts v. Armstrong, 8 Porter, 57; Wright v. Lyle, 4 Ala. Rep. 112; Stinson v. Gosset, Ib. 172, and other cases; but these citations will suffice to show the evidence was admissible in this view. If the party entered peaceably, and there was no evidence to show an unlawful or forcible detention, there, is no pretence for the action.

What we have said is sufficient to show, the Circuit Court was right in its conclusion, and its judgment is therefore affirmed.