Towns v. Malone

GARDNER, J. J. H. Towns (appellant here) recovered a judgment in the inferior civil court of Mobile county against appellee, Louis Malone. Said Malone subsequently presented a petition to one of the circuit judges of Mobile county specifically seeking the issuance of a common-law writ of certiorari for the removal of the cause to said court, which petition was granted without bond, the cause removed, and 'there tried de novo by the court without a jury. From the judgment there rendered, the plaintiff in said action prosecutes this appeal. The invalidity of the judgment appears from the petition to rest upon the averment that defendant in the original action had not been duly served with notice of the suit. For aught appearing, the proceedings (which were by attachment) were and are entirely regular upon their face, resulting in a judgment in rem, and no error apparent upon the record. The attack upon the judgment rests upon matters dehors the record. “The office of a certiorari, at common law, extends to questions of jurisdiction, and of the regularity of the proceedings. Only errors of law apparent on an inspection of the record will be corrected. * * * A judgment quashing or affirming the proceedings is the only judgment which can be rendered on review.” Stanfill v. Court of Revenue, 80 Ala. 287. “At common law, the writ of certiorari was issued by the superior court, to the inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority. The only judgment was to quash the proceedings, or sustain the same.” Max Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 So. 341. This latter authority is here very much in point and conclusive to the effect that the relief in the instant case is not by common-law cértiorari. The- writ should therefore have been quashed as sought by motion of appellant in the court below. The judgment will be reversed, and one here rendered quashing the_writ of certiorari. Max Winkler Brokerage Co. v. Courson, supra. Reversed and rendered. ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.