This is an action of forcible entry and unlawful detainer under chapter 89 of the Code of 1907, and is what is termed a possessory action, which must originate in the justice court, and is only tried in the circuit court upon appeal or when removed thereto under section 4283 of the Code. It may be questioned if the Act of 1915, p. 830, in providing for the transfer of causes from the law to the equity side or from the equity to the law side of the circuit court, applies to cases other than those originally filed in said court and not those taken there by appeal. At any rate, it is manifest that it has no application to forcible entry and unlawful detainer, wherein section 4271 forbids an inquiry into title, legal or equitable, upon the trial of such actions except as against damages. Archer v. Sibley, 201 Ala. 495, 78 So. 849. The Legislature did not intend by the Act of 1915 to revise or repeal express provisions relating
to these possessory actions. Moreover, if said act applied, it is questionable as to whether or not the denial of the defendant's motion to transfer is not discretionary with the trial court and is revisable upon this appeal. The act authorizes the assignment as error, on appeal from final judgment, the order transferring the cause and when the cause is retransferred; but we find nothing basing error upon a failure or refusal to make the original transfer, and, as the instances in which error may be assigned are specifically provided for, others are presumptively excluded.
The trial court did not err in refusing the general charge as to the forcible entry count, for, while the defendant claims to have entered lawfully as covered by section 4263 of the Code, there was also evidence from which the jury could infer that he entered peaceably but not lawfully; that is, without the consent of the plaintiff and as covered by the last part of section 4262 of the Code of 1907.
This case started in the justice court, which had no jurisdiction to render a judgment for exceeding $100 for rent or detention, and upon appeal the circuit court could render only such judgment as the justice could have rendered. Lykes v. Schwartz, 91 Ala. 461, 8 So. 71; Giddens v. Bolling, 92 Ala. 586,9 So. 274. It is true that section 4282 of the Code provides for judgment against the defendant and the securities on his supersedeas bond, for the value of the rent of the premises pending the appeal, and the circuit court may render judgment for same, independent of the rental damages that could have been awarded by the justice (Giddens v. Bolling, supra), and this could be done whether claimed in the complaint or not, yet it can be done only in the event of the execution by the defendant of a supersedeas bond and upon a motion by the plaintiff that such judgment should be rendered. In other words, unless the judgment in the justice court was superseded upon appeal, there should be no necessity for the accumulation of rent pending the appeal. Helton v. Ft. Gaines Oil Guano Co. (Ala. Sup.) 39 So. 925. There was not only no supersedeas bond in this case, but no bond at all, the appeal to the circuit court being based only upon a security for cost, and the judgment, as to rental damages in excess of $100, was erroneous. The judgment of the circuit court is therefore corrected by the reduction of same to $100, with interest since the date of same in the circuit court, and as corrected is affirmed. Cost of the appeal to be taxed to the appellee.
Corrected and affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.