92 Ala. 591 | Ala. | 1890
-The forcible entry and detainer of land is, under our statute, to be redressed by a civil proceeding before a justice of the peace, Welden v. Schlosser, 74 Ala. 355; and the judge of probate has authority to grant a writ of certiorari on a judgment rendered by a justice of the peace in sucha proceeding, returnable to the next Circuit Court of the County. Code of 1886, § 795. The writ operates to remove the case into that court for a trial de novo. It has long been settled in this State that, if the judge to whom a petition is presented deems the statement of facts therein sufficient to show an excuse for failing to take an appeal, and accordingly orders the issuance of the writ, the case is thereupon to be treated as effectually removed to the Circuit Court for a new trial; and that court will not afterwards entertain a motion to dismiss on account of defects in the petition, even though the petition does not in fact show a good reason for the failure to appeal. Washington v. Parker, 60 Ala. 447; Wright v. Gray, 20 Ala. 363; Case v. Briant, 1 S. & P. 51. In Washington v. Parker, supra, it was said : ‘-The policy of the statutes is to favor a speedy trial of such causes on the merits, without regard to defects or irregularities in the proceedings before the justice, or a rigid scrutiny into the mode of their introduction into the higher court.” The action of the Circuit Court in refusing to dismiss the certiorari on account of alleged defects in the petition was but an application of the statutory rule in favor of retaining the case, without regard to such defects, in order to secure to the complaining party the benefit of a new trial in a higher court than that of a justice of the peace. Its action in this regard ivas not erroneous.
The plaintiff recovered judgment before the justice and, under a writ issued on this judgment, was put in possession of
Affirmed.