Wade v. Miller

104 Ala. 604 | Ala. | 1894

MoCLELLAN, J.

This record discloses an anomalous course of proceeding in the court below. Numerous grounds of demurrer were assigned to the complaint and to each count thereof. They were all sustained. There was no amendment of the-complaint after the judgment sustaining the demurrers to it. But notwithstanding the striking out of the entire complaint by that judgment, it appears further from the judgment entry that, to quote therefrom, the ‘ ‘cause coming on to be heard by the court without the intervention of a jury, according to law, the court proceeds to hear the evidence, and after hearing the same finds for the defendant,” and renders judgment in favor of the defendant for the costs of suit, We have thus a judgment on the merits without a complaint, without a plea, without an issue, and without any agreement supplying the place of these essentials, so far, at least, as the record shows. The case is submitted and argued on both sides, however, upon the assumption that the ruling of the trial court upon the demurrers was not waived below, and is properly presented for revision by this record; and we will consider that ruling. The salient facts laid in the complaint are the following: Wade, the plaintiff in this suit, recovered judgment against one Welborne in an action of unlawful detainer before a j ust-ice of the peace. Welborne applied to the probate judge of Jefferson for certiorari and supersedeas to remove the cause into the city court of Birmingham, and to stay proceedings under the justice’s judgment until there could be a trial de novo in the city court. The judge of probate made an order directed to the defendant, who was and is clerk of said city court, in the following language : .• “Upon the petitioner entering into bond with surety for the amount of three hundred and sixty ($360.) dollars to W. H. Wade, and approved by you, and conditioned according to law, supersedeas and certiorari issue according to the prayer of the petition.” Three hundred and sixty dollars was the amount of double the annual rental value of the premises involved in the unlawful detainer suit. Upon the filing of this order and the petition therefor with said Miller, as clerk of the city court, he accepted from Welborne a bond with surety in the sum required by the order, but upon condition that Welborne should prosecute his appeal to effect, or, failing therein, should pay such judgment both as to debt and costs as might be rendered against him by said city court; and thereupon issued the writ of certiorari and supersedeas addressed to the justice of the peace who rendered the judgment and’to the constable of said justice’s court, commanding them “to suspend all further proceedings on said judgment and cease from further molesting the said C. E. Welborne on occasion thereof until the further order of said city court.” No further proceeding was had upon said judgment, no writ of restitution was issued, and Welborne continued to detain the premises while the cause was pending in the city court; a period of about seven months. At the end of this period a judgment was rendered by default in the city court against Welborne for the possession of the premises in question and for the costs of the action.

On these facts there can, we think, be no doubt that the defendant, the clerk of the city court, wrongfully issued the writ of certiorari and supersedeas. 'He was commanded by the judge of probate and authorized by the law to issue that writ only upon certain conditions being complied with and upon certain contingencies transpiring. He had no authority to issue it except upon the execution by Welborne and approval by him of a bond in the penalty prescribed by the order of the judge of probate with the condition prescribed by law. The bond he accepted was not conditioned as prescribed by law. The' statutory requirement, where it is sought to suspend the writ of restitution upon appeal or certiorari from justices’judgments in forcible entry or unlawful detainer, is that the defendant shall execute bond with sureties, payable to the plaintiff, in the sum of twice the yearly value of the rent of the premises, “with condition to pay the plaintiff all such damages as he may sustain by the prosecution of the appéal,” or certiorari. — Code, § 3401. The bond he took was not so conditioned, as we have seen, but to the contrary contained only a condition that did not at all protect the plaintiff from loss or damages resulting from the suspension of the writ of restitution. The bond taken indeed had only the condition requisite to removing the cause for trial de novo into the city court by appeal or certiorari, (Code, § 3399), and the statute itself expressly provides that such bond shall not suspend the writ of restitution in forcible entry and detainer and unlawful detainer cases. Code, § 3401. Yet upon this bond, without more, a writ of supersedeas was issued by the defendant to the justice of the peace who was authorized and whose duty it was to issue the writ of restitution. This command laid upon the justice by the superior court prevented the issuance by him of the writ of restitution, and thereby the plaintiff was damaged. We may concede for the argument that for this unauthorized issuance of the supersedeas the plaintiff, upon a proper statement of his case, would be entitled to recover whatever actual damages he sustained. But the case is not so presented in this complaint. The plaintiff claims solely for the taking of the bond, and not at all for the improper issuance of the writ. Now, the taking of the bond did not injure the plaintiff and could not have injured him, either in and of itself, because by the express words of the statute the taking of such bond does not “prevent the issue of a writ of restitution,” nor as resulting in or requiring the issuance of a supersedeas, because the clerk had no more right after such bond was taken than he would have had without any bond to issue the supersedeas. The act complained of, in other words,' is not the act which injured the plaintiff, and the act which did injure him is not complained of or counted on as a basis of recovery. The gravamen of the action, as laid in each count, was not that the plaintiff had been kept out of possession by reason of the wrongful issuance of the supersedeas, but that having been kept out of possession he was entitled to find in the clerk’s office a bond securing his damages incident to being kept out of possession, and this right he was deprived of by the neglect of the clerk in respect of requiring a bond with a condition covering such damages.

The bond taken by the defendant not being conditioned so as to cover the damages sustained by plaintiff by reason of the suspension of the writ of restitution, and the sole effort being to recover such damages, it is of no consequence to the plaintiff, and would not be if he had sued for the wrongful issuance of the supersedeas, that the sureties accepted thereon by the defendant were insolvent. Whether the bond was solvent or not, the plaintiff could not have maintained an action upon it for the damages he claims it ought to have secured, and for which he now sues the clerk. The third count of the complaint which relied upon the negligent approval by the defendant of a bond with insolvent sureties was, therefore, bad.

The circuit court properly sustained demurrers to the several counts of the complaint, and its judgment is affirmed .