Finney v. Baker, 78 So. 875

Finney v. Baker

78 So. 875 | Ala. | 1918

Lead Opinion

McCLELLAN, j.

[1,2] The order and judgment of the circuit court quashing the judgment of the inferior court — which was in favor of the plaintiff in the action of unlawful detainer — in consequence of the appellee’s petition for common-law certiorari to that end, was justified by thé fact that the judgment of the inferior court, even when aided by its reference to the description of the land in the'complaint, was wholly void. The judgment was that the “defendant restore to plaintiff the possession of the tract of land mentioned in the complaint.” The complaint, to which reference was thus made, bore only this matter of description:

“* * * Two hundred and fifty (250) acres of land, more or less, on the McCalley place near Merrimack Mills in Madison county, state of Alabama. Being the same lands of which he has [was] heretofore in possession. * * * ”

According to the apt authority of Bradford v. Sneed, 174 Ala. 113, 56 South. 532, as explained in Lessley v. Prater, 75 South. 355,1 the description in the complaint was of an uncertain part of a larger area; and was, *522hence, below the reasonable certainty requisite to constitute a valid judgment.

The judgment being void on the face of the record of the inferior court, the circuit court properly quashed it.

Affirmed.

ANDERSON, O. X, and SAYRE and GARDNER, JJ., concur.

200 Ala. 43

Lead Opinion

The order and judgment of the circuit court quashing the judgment of the inferior court — which was in favor of the plaintiff in the action of unlawful detainer — in consequence of the appellee's petition for common-law certiorari to that end, was justified by the fact that the judgment of the inferior court, even when aided by its reference to the description of the land in the complaint, was wholly void. The judgment was that the "defendant restore to plaintiff the possession of the tract of land mentioned in the complaint." The complaint, to which reference was thus made, bore only this matter of description:

"* * * Two hundred and fifty (250) acres of land, more or less, on the McCalley place near Merrimack Mills in Madison county, state of Alabama. Being the same lands of which he has [was] heretofore in possession. * * *"

According to the apt authority of Bradford v. Sneed, 174 Ala. 113,56 So. 532, as explained in Lessley v. Prater,75 So. 355,¹ the description in the complaint was of an uncertain part of a larger area; and was, *522 hence, below the reasonable certainty requisite to constitute a valid judgment.

The judgment being void on the face of the record of the inferior court, the circuit court properly quashed it.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

On Rehearing. Since a void judgment will not support an appeal (1 Michie, Dig. Ala. Rep. p. 324, § 112), the recourse to the remedy by common-law writ of certiorari to quash the judgment is not denied the defendant in the void judgment, rendered by an inferior court or a justice of the peace, during the period in which an appeal may, in a proper case, be taken and effected and a trial de novo had in the circuit court. Ind. Pub. Co. v. Amer. Press Ass'n, 102 Ala. 475, 492, 493, 15 So. 947.

The application for rehearing is overruled.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

¹ 200 Ala. 43.

Rehearing

On Rehearing.

[3] Since a void judgment will not support an appeal (1 Michie, Dig. Ala. Rep. p. 324, § 112), the recourse to the remedy by common-law .writ of certiorari to quash the judgment is not denied the defendant in the void judgment, rendered by an inferior court or a justice of the peace, during the period in which an appeal may, in a proper case, he taken and effected and a trial de novo had in the circuit court. Ind. Pub. Co. v. Amer. Press Ass’n, 102 Ala. 475, 492, 493, 15 South. 947.

The application for rehearing is overruled.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.