— 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,
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,
_ 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,
The judge of the fourth judical circuit did not err in refusing the writ of certiorari.
We are aware that, in Glaze v. Blake,
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,
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.,
Affimed.