Ex parte Grant & O'Barr , 53 Ala. 16 ( 1875 )

MANNING, J.

We have not been furnished with any brief or argument in this cause.

It was the duty of the justice of the peace, Mr. Nabors, to accept the bonds tendered, and grant the appeal and supersedeas applied for in this cause,, according to sections 3313 and 3314 of the Revised Code,. The refusal to do so was a denial of right to the petiti oners. •

In such a case, the law authorizes the judge of probate of the county, upon application t;o him to cause a certiorari to be issued for the removal of the cause from the court of the justice of the peace to the circuit court of the county. Rev. Code § 796. And this, being but a substituted method, instead of that by appeal, when the latter is denied, of removing the cause from the jurisdiction of the magistrate, for review, and of preventing the execution in the meantime of the judgment rendered by him, should so operate as to put the parties in the same plight and condition in which they would have been, if the appeal had been granted.

It was proper, therefore, for the judge of probate, as an incident to his power to cause the writ of certiorari to be issued, to cause also a writ of supersedeas to go to the sheriff, upon the ex ecution of a bond according to law, requiring him to desist from the execution of the judgment of the justice, and to restore possession of the premises to the petitioners. John v. The State, 1 Ala. 95.

The sheriff having refused to obey this writ for the reason, ás he says, that he had “doubt of the legality,” of it, the circuit judge had authority, on application being made to him, to cause a writ of mandamus to be issued, requiring the sheriff to do so. The circuit judge erred in supposing that he could not do this in vacation. The power is expressly given to him as judge, as well as vested in the court over which he presides. (Rev. Code, §747.) It may often happen that the powers given by this section will have to be exercised in vacation, in order to be effectual. Ex parte, Henderson 43 Ala. 392.

Applications for appeal, and certiorari, are usually made ex parte. These proceedings do not determine anything. They are merely modes of transferring causes from lower courts to higher ones, for trial in the latter, and for the suspension in the interval of any action against the appellants, who by executing their bonds with sureties, indemnify their adversaries against loss thereby.

If application had been made in this cause, to the circuit judge, in the first instance, instead of the judge of probate, for the writs of certiorari and supersedeas, there is no doubt that upon the execution of the bonds prescribed by law, he had authority to cause the writs to be issued", in vacation, and without notice to the adverse party. And we see no reason why upon taking care that the proper indemnifying bonds are executed, be cannot upon an ex parte application in vacation, cause the executive officer of bis court to obey lawful orders in reference to the same matters, issued by the judge of probate.

This court, however, will have to refuse petitioners the writ of mandamus for which they apply to us. By the “act to allow appeals to the supreme court in certain cases,” approved, December 15, 1868, (Acts, p. 410.) the proper mode of bringing the action of the circuit judge before this court for revision and correction, is by appeal. And when that mode of proceeding is prescribed, mandamus is not the proper remedy, Ex parte, Henderson, supra; Ex parte, Small 25 Ala. R. 74; Ex parte, Garlington, 26 id. 170.

The application for a mandamus is, therefore, denied.