Burns v. Howard

| Ala. | Dec 15, 1880

Per Curiam.

This cause originated before a justice of the peace and is founded on a witness certificate, issued to tbe appellee by the clerk of the Circuit Court of Dallas county, for the sum of five dollars and twenty cents. The justice rendered;, judgment in favor of the appellee, from which the defendants, now appellants, appealed to the Circuit Court. Failing to appear and prosecute their appeal, a judgment by default was rendered against them ; tbe judgment of the justice was affirmed and a procedendo awarded to the justice. The only error now assigned, is the judgment of the Circuit Court; and in support of it we have not been furnished with brief or argument.

A witness certificate is a prima facie cause of action in favor of the witness against the party to whom he has rendered the service "of attendance upon the court. It is issued and signed by the clerk of the court in the performance of an official duty imposed by statute. An action may be maintained upon it immediately ; the witness is not bound to wait tbe termination of the suit.—Hill v. White, 1 Ala. 576" court="Ala." date_filed="1840-06-15" href="https://app.midpage.ai/document/hill-v-white-6501354?utm_source=webapp" opinion_id="6501354">1 Ala. 576; Marsh v. Br. Bank of Mobile, 10 Ala. 57" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/marsh-v-branch-bank-at-mobile-6502972?utm_source=webapp" opinion_id="6502972">10 Ala. 57. It is assignable, and the assignee will have a right of action thereon in his own name.—Carville v. Reynolds, 9 Ala, 969. When in an action upon it a judgment by default is rendered, tbe judgment may be made final without tbe intervention of a jury ; it is an instrument of writing ascertaining the plaintiff’s demand.—Code of 1876, § 3032.

When a cause in which a justice of tbe peace has rendered judgment is removed into tbe circuit court, it is triable de novo. The judgment rendered -by the circuit court should not be’of affirmance, or of reversal of the judgment of the justice, but a new, independent judgment, founded on the merits of the case as disclosed in that court. Unless under some peculiar circumstances, such as were found in Derrett v. Alexander, 25 Ala. 265" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/derrett-v-alexander-6505368?utm_source=webapp" opinion_id="6505368">25 Ala. 265, it is not competent to award a pro-cedendo to the justice, for the cause no longer remains before him, and it is not contemplated that through him the judgment of the circuit court should be made effectual. The Circuit Court was in error in rendering a judgment of mere affirmance of the judgment of the justice, and in awarding a procedendo- commanding him to proceed in the execution of the judgment. It is difficult to pereeive of what injury the error can be to the appellants. At most, it is a mere error of form, which the record furnishes the means of correcting, and it will be here corrected at the costs of the appellants. 1 Brick. Dig. 71, § 13. The judgment should have been in favor of the appellee, John P. Howard, against the appellants, James H. Burns and John F. Burns, for principal and interest of the amount of the witness certificate, five dollars- and’ twenty four' cents, and the costs of the suit before the justice, five dollars and ten cents, and the costs of suit in the Circuit Court.

As corrected the judgment will be affirmed.