Donaldson v. Beard , 30 Ala. 423 ( 1857 )

NICE, C. J.

This was a proceeding under the act of February 17th, 1854, (Pamphlet Acts of 1853-4, p. 218,) to establish before the judge of probate of Coffee county a judgment of the circuit court of that county, which had been destroyed by the burning of the court-house in said county, in March, 1851. The judgment was established by the judge of probate; and afterwards the defendant caused the proceedings to be removed into the circuit court, by certiorari. On the return of the certiorari, the circuit court rendered a new judgment, for a different amount, against the defendant in the destroyed judgment. There is nothing to warrant the new judgment thus rendered by the circuit court, and it must be reversed, and held for naught. But the proceedings before the probate judge, which were carried by certiorari to the circuit court, are authorized by the act above referred to. Upon the return of the certiorari, the circuit court, instead of gender-ing the new judgment above mentioned, should have dismissed the certiorari, and ordered the probate judge to proceed according to law on the judgment rendered by him establishing the destroyed judgment; and as the circuit court should thus have proceeded, we shall do what it ought to have done.

It was not necessary to have the destroyed judgment revived, before proceeding to establish it under the aforementioned act. It can only be revived in the circuit court, where it was originally rendered; and now that it has been established under the act aforesaid, the proceeding to revive it may be commenced in the circuit court.

The judgment of the circuit court, for $244,52, is reversed, and judgment here rendered, dismissing the certiorari, and ordering the probate judge to proceed according to law on the judgment established by him. The appellant must recover the costs of the appeal to this court; but he must pay the costs of the court below.