Hightower v. Crow , 102 Ala. 584 ( 1893 )

BRICKELL, C. J.

1. The office of a certiorari issuing from this court under the 15th rule of practice, (Code, p. 802), is well defined by the rule. It is “to perfect or bring up a complete record” from the primary court of the cause pending in this court for review. The introduction here of the recox’d of a separate, distinct suit or proceeding, though between the same parties, pending or determined in the primary court, is not within the scope or mandate of the writ. The writ of itself refers to the record which is to be perfected or completed; and in return to it, no record materially variant from that which is referred to or described can be certified. 3 Bac. Ab. 181. Dxxring the pendency of an appeal, there may be in the primary coxxrt amendments of the record, and if such amendments are properly made, they may be certified in retuxm to the writ, because they are essential to the completeness of the record. With this exception, it has not been deemed permissible through the agency of a certiorari, to introduce into the record matter which was not part of it when the judgment from which the appeal is taken was rendered. — Montevallo Coal Mining Co. v. Reynolds, 44 Ala. 252, and authorities cited. Thetranscript or x’ecox*d of the proceedings had befox*e the judge of the circuit coux*t in vacation, upon the petition of the appellant for a rehearing or new trial, under the statute, (Code, §§ 2872-80), formed no part of the record of the cause when the judgment from which the appeal is taken was rendered. The petition was of itself the institution of anew and separate suit, and from the final judgment which may be rendered tlxerein, an appeal will lie to this court. The intx’oduction of the record or transcript of these proceedings in answer to the certiorari was unauthorized, and the motion of the appellant to strike it froxn the recox’d must be sustained.

2. The appellant in an action corresponding to the commoxx law action of detinue, recovered before a justice of the peace from the appellee, a horse of the assessed value of ninety-five dollars. From the judgment of the justice, the appellee appealed to the circuit court. At the return term of the appeal, there does not appear to have been any action taken in the circuit court; nor does it appear that to that term, there was a return of the original paper’s, and a statement of the proceedings before the justice. At the succeeding terxn, that which purports to be a judgment by default, was rendered against the appellant. The statute is mandatory, that on an appeal from the judgment of a justice of the peace, notice that an appeal has been taken must issue to the appellee, and must be served on him, his agent or attorney, five days before the return term of the appeal. — Code, § ¿403 ; Acts 1890-91, p. 369. The notice is essential to the jurisdiction of the appellate court; and ou error, a judgment of non pros, or by default, rendered against the appellee, cannot be supported, unless it appears affirmatively from the record, that the notice was given.— Bettis v. Nicholson, 1 Stew. 349; Wyatt v. Avery, 14 Ala. 586; Crownover v. Srygley, 19 Ala 251; Kane v. Gammell, 50 Ala. 492. The record does not show that notice of the appeal was given the appellant, nor an appearance by him in the circuit court and, of consequence, the judgment is reversed.

Reversed and remanded.