King v. Sawyer , 1 Ala. App. 439 ( 1911 )

i>b CRAFFENRTK1), J.

This suit was brought against the defendant, appellee here, and the sureties on his official bond as a notary public and ex officio justice of the peace. The complaint alleges that said notary public and ex officio justice of the peace “wrongfully issued a writ of restitution on a judgment rendered in his court on, to wit, January 22, 1910, in the case of J. B. Morris against plaintiff, for unlawful -detainer, after said plaintiff had 'filed a supersedeas bond and appeal bond with the said defendant, conditioned and payable according to law and within the time of appeal in such cases and before the issuance of said writ of restitution, and said bonds were executed by plaintiff with sufficient sureties; that by reason of said William Sawyer wrongfully issuing said writ, he, plaintiff, was ejected from his house at night and ousted from said land; he was forced to go out at night with his family, besides losing the opportunity of occupying said house with his family and farming on said land from February 12, 1910, up until the time his title to said land could be adjudicated by the proper courts of Alabama; or until his lease expired on said land, which will be, to wit, January 1, 1912, which said lease was dated November 14, 1908, and was for value.” There was a demurrer to the complaint on several grounds; the last ground raising the question as to whether the complaint made out a cause of action. The court sustained the demurrer, and the plaintiff appeals.

Pleadings, on demurrer, are to be taken most strongly against the pleader, and it will be noted that, while the complaint alleges that “plaintiff had filed a supersedeas bond and appeal bond with the said defendant, conditioned and payable according to law afid within the time of appeal in such cases and before the issuance of said writ of restitution, and said bonds were executed bv plaintiff with sufficient sureties,” it is nowhere alleged in the complaint that said bond or bonds were ever approved by said justice of the peace. It may be thát said bonds were, in fact, all that was claimed for them in the complaint; but, until their approval by the justice, they were insufficient to oust the jurisdiction of the court to issue the writ of restitution. The approval of, or the refusal to approve, a bond under section 4281 of the Code of Alabama by a justice of the peace, or other officer authorized to approve such bond, is a judicial act, and there is no principle more firmly established than that a judicial officer is not liable in damages, however erroneous may be his rulings, for any act done by him in his judicial capacity while acting on matters within his jurisdiction. A contrary rule would destroy the independence of the judiciary. The case of Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559, is conclusive on this point. While the opinion in that case referred to official bonds, its -entire reasoning is equally applicable to the case under discussiofi.

It will be noticed that section 4281 of the Code provides that an appeal does not prevent the issue of a writ of restitution, unless the defendant also execute bond with sufficient sureties, payable to the plaintiff, in the sum of twice the yearly value or rent of the premises, to be ascertained by the justice of the peace. The statute clearly contemplates that the yearly rental value of the premises shall be fixed by the justice of the peace, and that also he shall pass upon the question of the sufficiency of the sureties on the bond. It will be noticed that the complaint nowhere alleges that the jnstice of the peace fixed the amount of the yearly rental value of the premises, and it nowhere alleges that he passed upon the sufficiency of the sureties on the alleged bonds.

The law provides a remedy for a party aggrieved bv such refusal of a justice of the peace to approve such bond, in that it authorizes the judge of probate of the county, upon application to him, to cause a certiorari tó be issued for the removal of the cause from the court of the justice of the peace to the circuit court of the county. Speaking upon this subject, the Supreme Court, in the case of Ex parte Grant & O’Barr, 53 Ala. 16, says: “In suck a case, tbe law authorized the judge

of probate of the county, upon application to 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. 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 execution 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. State, 1 Ala. 95.”

There are several other questions presented by this record, but it is unnecessary to consider them. The court properly sustained the demurrer, and the judgment of the lower court is affirmed.