Bell v. Killcrease

11 Ala. 685 | Ala. | 1847

COLLIER, C. J.

The complaint is unnecessarily special in the description of the land of which the complainant is in possession, but this is not a legal objection to it. It furnishes data from which it would not be difficult to draw a diagram and ascertain its locality. The quantity of land, name of the original patentee, length of the lines, courses, situation of the lake, and how and where it is traversed by the lines, and bounds the land, is distinctly stated. Having progressed thus far, the supposed difficulty of identifying the land all vanishes-it is only necessary to follow the line which we have supposed to be traced from "one margin of the lake, south 22 degrees to the other margin thereof"-rernemberiug that the locus ~n quo is across the lake from the point at which the survey begins. The objection then, that the complaint is too general to support the judgment, or to enable the officer to execute a writ of habere facias possessio-nern, is not well taken. [2 Porter's Rep. 86; 8 Ala. Rep. 87; 3 Ala. Rep. 127, and cases there cited.]

The proceedings before the justice not only do not show that there was no objection to the process to bring in the de~ fendants and the venire facias by which the jury were summoned ; but it is* explicitly stated in the transcript sent to the circuit court, that the plea of not guilty was interposed, the jury summoned and impannelled, and that they found a verdict of guilty, on which judgment was rendered. In this-condition of the cause it was not allowable to object after judgment to these proceedings, which were but preliminary to the trial : if they were defective, all objection was waived by pleading to issue, and submitting the case to a jury, [4 Ala. Rep. 114; Clay’s Dig. 252, §10.]

It is provided by the -act of 1805, that if the jury in a proceeding for a forcible entry and detainer, shall find the defendant guilty, it shall be the duty of the justice to record the verdict, and give judgment thereon with costs ; and also issue a writ of restitution, &c. It is also made the duty of the justice to enter on his minutes or docket, true copies of the complaint, the summons and venire, and their respective returns — the names of the jurors, their verdict and his judgment thereon — the names of the witnesses, and the admission of evidence objected to, and the rejection of evidence offered, the reason of such admission or rejection, and all the proceedings had before him touching the said complaint. Further, the proceedings had by virtue of this act, may be removed before the circuit court of the county in which the same may have taken place : “ and such removal shall be by writ of certiorari, and in no other way, apd then only after judgment.” [Clay’s Dig. 252, § 13; 253. & 16-18.]

A certiorari is a writ directed to the judges of an inferior court, or a justice of the peace, commanding them to certify a record or proceedings before them. The record itself is returned, or at least is considered as having been transmitted to the court above, even though the return .state that a copy only had been sent up, and the court proceeds with the cause. [1 Dunlap’s Prac. 220-223.]

There is nothing in our statues, which, in totidem verhis, requires the justice to certify copies of the complaint, process- and venire, instead of the original papers. True, he is directed to enter them “ on his minutes or docket;” but this was doubtless intended as a mean of preserving a memorial of them more convenient for reference — less liable to loss, and. perhaps for the additional purpose of having a perfect transcript of all the proceedings. If the justice has performed this duty, it cannot be very important that he should retain the original papers in his office ; if the circuit court when the cause is removed there, should direct avenirefacias de novo, or award a procedendo, the transcript before him will serve as a basis for his action. We cannot then perceive any reason why the circuit court should not recognize the original papers with a transcript of the proceedings when duly certified as a sufficient return to the certiorari, and require the plaintiff to assign errors thereon; or in default of such assignment, affirm the judgment of the justice. To award an alias certi-orari in such case, unlesss the plaintiff could show that he would be prejudiced, if required to proceed without a copy of the papers, would only be productive of delay, and defeat the summary and expeditious remedy which the statute intended to afford. We cannot think the circuit court should have made the rule upon the justice which the plaintiff asked. This view is decisive of this cause, and the judgment is consequently affirmed.