44 So. 864 | Ala. | 1907
Tbe appellee filed a petition in tbe circuit court for a common-law writ of certiorari to tbe justice of tbe peace court to supersede a judgment therein. Tbe petition alleges that no process was issued, or any notice served on him; that be bad no notice or knowledge of any proceeding against him in said justice of tbe peace court, or of tbe judgment which was entered up against him on tbe 22d day of September, 1900, until some time in tbe year 1904; and that no process Avas issued on said judgment until September 27," 1806, Avhen an execution was issued thereon and levied on bis property. It also alleges that tbe record does not sIioav that any summons Avas served on him, and states formally tbe grounds of bis contention. Tbe petition also sets out a copy of a motion, made in tbe justice of tbe peace court by him, seeking to quash the levy, which Avas overruled. Tbe respondent offered a motion to strike tbe petition and also a demurrer to the same, Avhich Avere overruled; and be filed an answer, in which “tbe respondent pleads tbe transcript of tbe docket of tbe justice of tbe peace and says there is no right in law for tbe granting of tbe writ.” Tbe court granted tbe pe
Not only does the docket from the justice of the peace court fail to show that any process was ever served on the petitioner, or that he appeared in court, but in the state of the pleading the petition must be taken as true, showing that no process was served on the petitioner or any notice of any kind given him of the pendency of the proceedings against him. Under these circumstances the court had no jurisdiction of his person, the judgment is void, and the proceeding by writ of certiorari is the proper remedy. — Independent Pub. Co. v. Am. Press Ass’n. 102 91a. 475, 15 South. 947 et se.; Beach v. Lavender, 138 Ala. 406, 35 South. 352; M. & C. R. R. v. Brannum, 96 Ala. 461, 11 South. 468.
It is insisted that the appellee appeared, as shown by the docket of the justice of the peace, on the motion to revive the judgment, and thereby waived its invalidity. It is a sufficient answer to this contention that the pleadings do not set up any such waiver; also that the memorandum on said docket seems to refer to the execution against the garnishee, and it states, “Notice of sci. fa. for revival of judgment,” and the subsequent reference of “both parties being present” may refer as Well to the garnishee as to the defendant. Again, if the judgment was a nullity (as it was in this case), “it could not be vitalized by an order of revivor,” and while the opinion in which this expression is used states that the revivor and execution, in that case, estopped the appel-lee from gainsaying the validity of the decree, yet that was a case in which the judgment revived was said to be merely irregular, and not a nullity. — Martin v. Tally, 72 Ala. 23, 29. In a subsequent case this court said: “There can be no revival of a nullity.” “There is no merit in the plaintiff’s contention that the garnishee’s
The cases on the subject of limitation of certiorari in the nature of an appeal have no application to this case. Again, the limitation was not set up by pleas.
The judgment of the court is affirmed.
Affirmed.
