Alabama Great Southern R. R. v. Christian , 82 Ala. 307 ( 1886 )

STONE, C. J.

— The appellee, Christian, sued the appellant railway company, before a justice of the peace, claim- p ing damages for the alleged wrongful and negligent killing of a mule, the property of plaintiff. The justice gave judgment in favor of plaintiff, for eighty-five dollars damages, besides the costs. Such are the averments of the sworn petition presented by the railway company to'Hon. John Moore, the presiding judge of the fourth judicial circuit, which embraces Hale county. The prayer of the petition was and is, to have the proceedings before the justice certified up to the Circuit Court, and there quashed and vacated, on the alleged ground that the justice had no jurisdiction of such tort, the sum in controversy being in excess of fifty dollars. The circuit judge denied the writ, and the case is brought before us by appeal • from his ruling. "Will common-law certiorari lie in such a case as this ?

Certiorari, at common law, is an extraordinary legal remedy. It can be invoked only when there is a legal right, and no other adequate- legal remedy. “When an appeal lies, certiorari is not the proper remedy.” — Case of Borough of Warwick, 2 Stra. 991; The King v. Harman, Andrews, 343; 2 Wait’s Ac. & Def. 134-5; Edger v. Greer, 14 Iowa, 211. And this writ will not, 'in general, be issued, “ where the party has a remedy by appeal to correct the irregularity or injustice of which he complains.” — 2 Wait’s Ac. & Def. 138; 2 Bouv. Bac. Abr., 163, 165. And this doctrinéis sustained by the following adjudged cases: Farrell v. Taylor, 12 Mich. 113; Storm v. Odell, 2 Wend. 287; In re Mount Morris Square, 2 Hill (N. Y.), 14; People, ex rel. v. Supervisors, 1 Hill, 195; Ruhluran v. Com., 5 Bin. 24; Phillips v. Phillips, 3 Halst. 122; Savage v. Gulliver, 4 Mass. 171; Macaboy v. Com., 2 Va. Ca., 268; Trigg v. Boyd; 4 Hayw. 100; Bob v. State, 2 Yerg. 173; Witkowoki v. Skalowski, 46 Ga. 41; People v. Shepard, 28 Cal. 115; The King v. Jackson, 6 T. R. 145.

So in Alabama: “A certiorari is a revisory wrrit, and may be issued by a superior, to correct the erroneous action of an inferior court, wnere the law has provided no remedy by-appeal. ” — Benton v. Taylor, 46 Ala. 388; Ex parte Buckley, 53 Ala. 42; Town of Camden v. Block, 65 Ala. 236. “ It is a general rule of the common law, that a writ of error-will not lie, when the court whose judgment is complained of acts in a summary manner, or in'a new course different from the common law. In such cases, the writ of certiorari is the appropriate remedy. Or, as the rule is sometimes- expressed, where a new jurisdiction is created by statute, and the court exercising it proceeds in a summary method, or in a course different from the common law, a certiorari is the only proper remedy to revise its action.”— 1 Brick. Dig. 333, §§2,4, 6. _

_ In what is said above, it is not our intention to declare that, in no case where a justice exceeds his jurisdiction, will the common-law writ of certiorari lie. The constitution, in terms, denies to those officers jurisdiction in cases of libel, slander, assault and battery, and ejectment. These, in their very nature, and irrespective of the amount of damages claimed, are without their jurisdiction. Judgments rendered by justices, in either of these actions, are coram non judice and void. So, in statutory and summary proceedings, not according to the rules which obtain in common-law trials, it would be seen that a review may be obtained on common-law certiorari. What we do decide is, that in cases where ample redress can be obtained on a trial de novo, and the right of appeal is unobstructed, the conditions are wanting which justify a resort to this severe remedy; a clear legal right, and no other adequate legal r,emedy.

It can not be questioned that, in this case, the defendant railroad company had the right of appeal, and that on such appeal the question of jurisdiction could have been raised. Burns v. Henry, 67 Ala. 209, which' collects the authorities.

The judge of the fourth judical circuit did not err in refusing the writ of certiorari.

We are aware that, in Glaze v. Blake, 56 Ala. 379, there is a statement which is not reconcilable with what is decided above. That remark was not called for by anything raised by the record. It was stated too broadly, and must be taken with the qualification above expressed. We fear it misled counsel in this case, and, if left as an authority, it may mislead in other cases. We would not be inclined to disturb it, if it simply declared a rule' of practice. It has a deeper significance; deeper, because trial de novo, on appeal, is much more conservative in its results, than the unbending judgment of validity or nullity, which must follow in common-law certiorari. That remark was unadvisedly made, and must be qualified

We have no wish to unsettle or question the principle, so often declared since the adoption of the constitution of 1868, that- “ the jurisdiction of justices of the peace, in actions of tort, never having been extended beyond fifty dollars by act of the General Assembly, that officer has no jurisdiction of an action” for any wrong or injury, where the damages claimed exceed fifty dollars. — Code of 1876, § 751, sirb-d. 2 ; Act approved Dec. 12,1884, Sess. Acts, 88; Taylor v. Woods, 52 Ala. 474; Carter v. Alford, 64 Ala. 236; Burns v. Henry, 67 Ala. 209; Rodgers v. Gaines, 73 Ala. 218; Morris v. Robinson, 80 Ala. 291.

Whether the rule is different, when stock or cattle is killed or injured by a railroad, and whether section 1711 of the Code of 1876, bearing on the question of a justice’s jurisdiction, is reconcilable with the constitutions, State and Federal, are questions reserved until they come properly before us. — Zeigler v. S. & N. R. R. Co., 58 Ala. 594; S & N. R. R. Co. v. Morris, 65 Ala. 193; Home Pro. of North Alabama v. Richards, 74 Ala. 466; Smith v. L. & N. R. R. Co., 75 Ala. 449; Strander v. West Va., 100 U. S. 303.

Affimed.