Earle v. Juzan

7 Ala. 474 | Ala. | 1845

ORMOND, J.

— It does not appear from the record, that the plaintiff in error was a party to this proceeding in the County Court, and it is very clear, therefore,' that he cannot prosecute a writ of error to reverse the order of the County Court.

The petition of the defendant in error, appears to be very defective ; it does not state who are the heirs, or the tenants of the freehold, nor does it appear that any suggestion was made to the Court who they were, or notice given to them to appear and defend. Nor does it appear that notice was given to the executor, or administrator, to appear and contest the claim, or that notice was given in the gazette.

But however irregular, or illegal this proceeding may be, it cannot be examined upon a writ of error, sued out by a stranger to the record. In the case of Cawthorn v. Weissinger, 6th Ala. Rep. 714, we had occasion to examine a question somewhat analogous to this. It is there laid down, that where a new jurisdiction is created by statute, and the Court, or Judge exercising it, proceeds in a summary mode, and not according to the course of the common law, a certiorari is the only remedy. If then, the plaintiff in error is aggrieved by the order of the County Court, made ex parte upon the petition of the defendant in error, he may obtain redress by a certiorari returnable into the Circuit Court;. he cannot be heard upon this writ.

Let the writ of error be dismissed.