Morris v. Beall , 85 Ala. 598 ( 1888 )

SOMEBYILLE, J.

The present appeal is taken from a judgment of the Criminal Court of Jefferson county granting a writ of prohibition against a justice of the peace, restraining him from taking jurisdiction of a civil proceeding. It is contended that the judge of that court has no power to grant a writ of prohibition in such a case, which is the exercise of a civil, as distinguished from a criminal jurisdiction. The argument is, that the act approved February 18, 1887, entitled “An act to establish the Criminal Court of Jefferson county” (Acts 1886-87, pp. 835-841), purports on its face to confer jurisdiction only in matters of criminal procedure; and that the clause contained in section 2 of the act, which provides, “the judge shall have and exercise all the jurisdiction and powers which are or may be hereafter lawfully exercised by judges of the Circuit Courts of the State,” is foreign to the title of the act, and not clearly expressed in it; and that for this reason it is void for repugnancy to section 2 of Article IY of the Constitution, which declares, that “each law shall contain but one subject, which shall be clearly expressed in the title.” — Const. 1875, Art. IY, § 2'; Code, 1886, p. 26, and cases there cited. We may admit this contention for the purposes of this case, and yet the judgment must be affirmed, for the following reasons:

There are but two errors assigned, and the question of the constitutionality of the law is not raised by either of them.

The first assigment of error is based on the overruling by the court of a plea in abatement to the jurisdiction of said court, “on the ground that said judge had no right to hear and pass on any civil matter.” The form of the plea is not set out in the record, nor is it stated upon what ground-it was overruled by the court. We can not say, without an inspection of the plea, that the court erred in overruling it. It may have been defective in substance for various reasons, or may have been filed to^ late.

The only other assignment of error is the overruling'by tbe court of the demurrer to the appellee’s petition. This demurrer was general, and failed to state distinctly the special grounds of objection to the petition, as required by the statute. — Code, 1886, § 2690; 8 Brick. Dig., pp. 704-705, §§ 65-84.

The judgment must be affirmed.