Linch v. Scott

This is an appeal from an order or judgment of the circuit court of Houston county, refusing to grant to appellant a common-law writ of certiorari, whereby it was sought to annual, vacate, and declare void a certain judgment rendered by a justice of the peace against the appellant and in favor of the appellee.

The contention is made that the proceedings before the justice are void because the justice failed to require the appellee, plaintiff in the justice court, to give security for cost; it being contended that he was a nonresident, and because the justice rendered judgment by default against appellant, with his plea of the general issue, filed in the said justice court undisposed of. To authorize us to quash the proceedings in the justice court, the invalidity must appear from or by an inspection of the record itself. It must proclaim its own invalidity, or it must fail to show that the court acquired jurisdiction to render the judgment or order complained of. Benedict v. Commissioners of Mobile County, 177 Ala. 52,58 So. 306; Dean v. State, 63 Ala. 154; Town of Camden v. Bloch, 65 Ala. 239; Mayfield v. Tuscaloosa County, 148 Ala. 548,41 So. 932; Cushman v. Blount County, 160 Ala. 227,49 So. 311.

The motion to require the appellee to give security for cost does not appear to have been filed in the justice court, but on account of the fact that strict formality as to pleading in the justice court is not required, and that motions may be oral and not required to be in writing, it may be conceded that the motion was properly made and considered. Freeman v. Speegle,83 Ala. 191, 3 So. 620; Abrams v. Johnson, 65 Ala. 465; Martin v. Higgins, 23 Ala. 775.

However, so far as the proceedings appear here, presuming the consideration of this motion, this court cannot say that the appellee was a nonresident, and that he was on this account within the terms of the statute that required his giving bond. This was a matter for the determination of the justice of the peace, and, should he have been a nonresident, and have failed to give such security, this would not have made the judgment against appellant void. This was not a jurisdictional matter, but a requirement that the proceedings should be dismissed on motion. Section 3687, Code of Alabama.

It cannot be doubted but that appellant could have waived the question of the appellee giving security for cost in the justice court. In other words, if the appellee had not given security for cost on the filing of the suit, and no motion has been made to this effect, and judgment had been rendered for appellee, it must be clear that the judgment would not be void on this account. The failure to require the giving of security for cost is a mere irregularity. It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether a party can waive the objection. If he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. Jenness v. Lapeer County Circuit Judge,42 Mich, 471, 4 N.W. 220.

If appellee was in fact a nonresident and the justice refused on motion to require security for cost, the appellant's remedy was by appeal.

Where petitioner has a complete and adequate remedy by appeal to correct the error in the lower court, he is not entitled to the common-law writ of certiorari. Ex parte Howard-Harrison Co., 130 Ala. 185, 30 So. 400; Guscott v. Roden. 112 Ala. 637,21 So. 313; District Lodge v. Harvey, 6 Ala. App. 246,60 So. 602; Wright v. Geneva County, 180 Ala. 534, 61 So. 918; Hines v. Tribble, 4 Ala. App. 237, 57 So. 265; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.

Contention is further made that judgment by default was rendered, while it appears the defendant had a plea of the general issue on file, and the same was undisposed of, and that on this account the judgment was void.

Judgment by default when it should be by nil dicit is error without injury. Glass Co. v. Paulk, 83 Ala. 404, 3 So. 800; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249; Green v. Jones, 102 Ala. 303, 14 South, 630; McCoy v. Harrell,40 Ala. 232; Goodwater Warehouse Co. v. Street, 137 Ala. 621,34 So. 903.

A judgment nil dicit will be sustained, although pleas are on file, and the presumption will be indulged that the defendant was in court and did not attempt to sustain his pleas. Bryant v. Simpson, 3 Stew. 339; Dougherty v. Colquitt, 2 Ala. 337.

We therefore conclude that the judgment sought to be vacated was not invalid, but the matters complained of were irregularities, subject to correction on appeal.

No error appearing in the record, the judgment of the circuit court refusing to quash the proceedings in the justice court is hereby affirmed.

Affirmed.