Ex parte Keenan

21 Ala. 558 | Ala. | 1852

CHILTON, J.

— This is an application for a mandamus to tbe Honorable Ezekiel Pickens, Judge of tbe Second Judicial Circuit, to command him to award a certiorari to bring before tbe Circuit Court of Dallas county certain proceedings bad before tbe Commissioners’ Court of Eoads and Revenue establishing a road, tbat tbe same might be reviewed.

Judge Pickens waives tbe alternative mandamus, and consents tbat tbe petition here filed be considered as true, and also admits tbat be refused to grant tbe fiat for tbe writ of certiorari, because be was of opinion tbe petition, although it might show legal error, did not show tbat evident injustice bad been done tbe petitioner.

Tbe rule undoubtedly is, that a court will not reverse tbe proceedings of an inferior tribunal for an error which works no injury to tbe party complaining of it. Stone v. Stone, 1 Ala. Rep., 582; Holmes v. Gayle, ib., 517; Lawson v. Orear, 7 Ala. Rep., 784. In this case, however, conceding tbat there was error in establishing the road, it is impossible to say it worked no injury to the petitioner, since be shows tbe road complained of will run about two miles through bis lands. He prima facie shows injury, when it is made to appear that the road has illegally been established over his land. We mean legal injury, as contra-distinguished from any actual damage;. for, although the road may be of benefit to him, yet if illegally established upon the land, he is as much entitled to revise and reverse the proceedings, as he would the judgment of a court rendered upon an insufficient declaration to which he had demurred.

Without passing upon the record of the proceedings before the Commissioners’ Court, we think such a case was made out as prima facie entitled the petitioner to the writ of certio-rari.

Let a mandamus issue.

DARGAN, C. J.

— I think the Circuit Judge should have awarded the writ of certiorari. It is true, that a naked error, without injury, will not reverse a judgment, but my understanding of the practice is, that an error shown implies injury, and must reverse the judgment, unless the record itself repels the implication of injury, and shows that, notwithstanding the error, there has been no injury. Now the error in the Commissioners’ Court is, that the petitioners for the road did not give the notice required by the statute. Digest 507. This error, as the record is now presented to us, exists, and there is nothing in the record to cure it, nor can we say that it is an error without injury.