Appellants were the plaintiffs below in an action against appellees to reсover damages alleged to have resulted from furnishing false samples of baled cottоn. The trial of the cause resulted in a verdict and judgment against appellants who prosеcuted an appeal to this court. This court reversed, the judgment of the circuit court аnd remanded the cause for a new trial. The judgment of reversal was rendered on April 12, 1920, and on October 11, 1920, the parties waived the issuance and filing of the mandate of this court and prоceeded to a retrial of the cause in the circuit court. The second trial resultеd in a judgment against appellants and' they now attempt to bring the record of the last prоceedings before us by certiorari to quash the judgment.
The contention is that the judgment is void for thе reason that the circuit court, notwithstanding the waiver of the filing of the mandate, could not аnd did not acquire jurisdiction to retry the cause. They rely in this contention on decisions of this cоurt holding that on the reversal of a judgment the lower court acquires jurisdiction by the filing of the mandаte in that court. Lafferty v. Rutherford,
The writ of certiorari is therefore quashed and the judgment of the circuit court affirmed.
OPINION ON MOTION TO MODIFY.
McCulloch, C. J. We are asked to modify the judgment of this court by eliminating the affirmance of thе judgment of the circuit court, leaving in force only that part of our judgment which quashes the writ of certiorari, so that appellants will be left free to prosecute an appеal from the judgment of the circuit court. They say that there are errors in the record of thе trial below which will be brought before us for review in a bill of exceptions if they are allowed to prosecute an appeal.
It has always been the practice in this court where the record of the trial court is brought before us on certiorari which questions only the jurisdiction .of that court, either to quash the judgment if it appears that the court had no jurisdictiоn, or to affirm it if the court had jurisdiction. Auditor v. Davies,
The rule stated in the encyclopedia above cited, with numerous authorities to support it, is as follows: “Unless otherwise provided, the judgment should be that the proceedings below be quashed, or that they be affirmed. ’ ’ We do not (find in any of the authorities, either among the adjudged cases оr the text-writers, where the reasons are stated for the adoption of this practice of affirming a judgment brought up on certiorari, where it is found that it was rendered within the jurisdectional рowers of the court. But there can be but one reason, and it is this: Certiorari can not ordinаrily he used as a substitute fox appeal, but the aggrieved party has the election to tеst the validity of the judgment on its face, either by appeal or by certiorari; land if he adоpts the latter remedy, he can not afterward resort to the former, for it is the duty of an aрpellate court, if it is found that a judgment is not void, to affirm it, which cuts off any further review by appeal. Remedy by certiorari is not one which may be had as of right, but it is only at the discretion of the court, and it would be the duty of the court to refuse that remedy if the aggrieved party could afterward, prosecute an appeal and had that remedy in contemplation.
The quеstion falls within the general doctrine of election of remedies, and it is the duty of the party, where he has two remedies, one of which is limited in its scope and the other is general in its scope, to adopt, in the first instance, the remedy which will give- complete relief; otherwise he is bound by his election .to pursue the limited remedy.
The motion to modify is therefore denied.