116 Ala. 654 | Ala. | 1897
Section 795 of the Code of 1886 (Code of 1896, § 3372), which confers on the judges of probate authority “to grant writs of certiorari on any civil judgment rendered by a justice returnable to the next term of the circuit court,” lias reference entirely .to statutory writs of certiorari, in which cases, without reference to any error apparent on the record, trials are had de novo, as in appeal cases. — Code of 1886, §§ 3158, 3405. Common law writs of certiorari are granted to
These common law writs of certiorari issue from the superior revisory tribunals into which it is proposed to remove causes from inferior courts, for review of proceedings for error apparent. A judge of probate has no jurisdiction to grant such writs, which, by the common law are committed only to the revisory or appellate courts, or to the judges thereof. — Guscott v. Roden, supra.
The judge of probate in this case granted the order for the issuance of the writ of certiorari to the .justice of the peace, for him to certify to the circuit court of Fayette county, the record of proceedings in this case, in which a judgment had been rendered in favor of appellant against appellee for $20 and costs.
The defendant appeared specially in the circuit court, and moved the court to quash the writ on the ground, among others, that the judge of probate granting the writ was, at the time of granting the same, without any legal authority to grant a common law writ of certiorari.
It is not pretended that the writ was issued under, or according to any statute, but it is admitted by counsel for appellee,' that it was a common law writ of certiorari. The circuit court denied and overruled the motion, and entered judgment quashing, vacating and annulling the judgment of the justice of the peace.
In this the court erred. Said motion should have been granted, and the writ quashed. No other question discussed by appellant need be considered. The judgment below is reversed, and one will be here entered quashing said writ and proceedings in the circuit court.
There are decisions in this court, which counsel for appellee refers to and relies on, which, as urged, seem to hold, that the judge of probate may grant a common law certiorari, since . the writs were granted by such judges, and afterwards the cases were considered and not quashed for that reason ; but, in all such cases, so far as we are advised, the question of the authority of
Eeversed and rendered.'