Fortson v. Mattox

JACKSON, Chief Justice. We do not think this certiorari falls within section 4050 of the Code, but under section 4052. The jurisdiction is that of the ordinary, and not of the court of ordinary. By act of 1872, p. 60, sections 737 et seq. of the Code, private ways and the removal of obstructions thereon are under the jurisdiction of that officer, who, on three days’ notice, acts upon petitions to remove the obstructions as ordinary, and not at regular terms of the court as a court' of ordinary. His action is that of an inferior judicatory,, and not of the court of ordinary sitting regularly and constituted to try matters touching estates, and other mat [284] ■ters of like character devolved upon courts of probate of wills, etc. The motion to dismiss the certiorari, therefore, because the exceptions were not in writing, taken at the time under section 4050, was properly overruled. 2. The facts disclosed in the record by the answer of the ordinary are not sufficient to authorize his judgment thereon, and the court was right in sending the case back for a new hearing thereon. Assuming the answer to be true, and thus deciding the traverse in favor of the defendant in certiorari, it does not appear in what state or county the road was located, nor where it began and terminated, nor what sort of way it was, nor what obstruction, and how it impeded the use of the road. No court would be authorized to found a judgment on ue total want of evidence on these vital facts, and the cause ought to be tried again, the judgment being without evidence, and therefore contrary to law. Judgment affirmed.