Adams v. Horsefield

(JOLLIER, C. J. This was a proceeding under the statute for a forcible entry and detainer, at the suit of the plaintiffs in error. On the trial before the justice of the peace, [226] there was a verdict and judgment for the defendant, which was removed by certiorari to the circuit court, and there reversed. The defendant then prosecuted a writ of error to this court, and in June, 1846, the judgment of the circuit court was reversed, and the cause remanded, with instructions to proceed according to the opinion then pronounced. 10 Ala. 9. Upon the case being sent back, the defendants moved the circuit court that a certiorari issue to the successor of the justice before whom the proceedings were instituted, “ to amend the record by sending up the testimony taken at the trial by the said Barnes, (the justice who tried the case,) relating to the matter of his charges to the jury, or show cause to the contrary.” This motion was denied. Thereupon the defendants moved the court to receive as an amendment to the record, a transcript from the docket of Barnes, certified by his successor, which was in like manner refused. The defendants further moved, that a paper exhibited by them, purporting to contain the record made by Barnes, of the trial and testimony therein, certified by his successor, be received as an amendment to the record. This motion was also denied. Whereupon the judgment of the justice of the peace was affirmed, on the errors which had been assigned previous to the suing out of the first writ of error. It is now assigned for error, that the judgment of the justice of the peace should have been reversed, and that the several motions of the defendants should have been allowed. If the law shall be ruled against the defendants, upon these points, they pray that a mandamus may be awarded to the circuit court commanding the judge thereof to allow some one, or all of these motions. The opinion of this court was given upon the errors assigned, and was an ample warrant for the judgment of af-firmance by the circuit court. It became the law of the case, and furnished a guide to all ulterior proceedings, so that it is not now allowable to look behind it, and again review questions which we have passed on and' adjudicated. This rule has been so often recognized, not only here, but in all appellate tribunals, that it is needless to cite authority to support it. We may however add, that we [227] have carefully read the opinion referred to, and cannot discover that it is at fault in any of the conclusions attained. True, it might have amplified, and more fully illustrated some of the legal points presented, but its brevity could not excuse us for refusing to recognize it. Further, does it not appear from the statement of the case in the report, that this court considered the records which it was proposed to attach to the transcript, as already a part of it, by consent or otherwise, and was not the case decided upon this hypothesis ? In remanding the cause to the circuit court, this court did not intend that that court should again consider the errors assigned. We incline to think that upon the cause being sent back, the circuit court had no other duty to perform than affirm the judgment of the justice, and award a procedendo. But however this may be, we consider it perfectly certain, that that court could not re-examine the assignment of errors on which it had previously passed; for these had been reviewed by this court, and adjudged insufficient to authorize a judgment of reversal. Without stopping to consider whether the refusal to award a certiorari, or to grant a motion' to perfect a record, is revisable on error, under any circumstances, we are satisfied, that in the posture of the present case, the defendants have not been prejudiced by the denial of their motions. No matter what facts were disclosed by the records, they sought to have attached to the transcript, we have seen that the result of the cause would not have been varied. It is incumbent upon a party, before he assigns errors, to see that the record is in the condition in which he is entitled to have it; if he proceeds upon an imperfect transcript, and the judgment of the court is against him, he cannot then, as a matter of right, claim a certiorari to the inferior tribunal. In the case before us, we have seen that a change in the record would have availed nothing, as the supposed errors which the circuit court were called on to consider, had been definitely examined and decided on, here. Conceding it was competent for the circuit court to have allowed other errors to be assigned upon the cause being remanded, yet if that court possessed such 9. power, its exer [228] cise was discretionary, and the refusal to accord the permission would not be a ground of error. But in the present case, the plaintiff in error did not assign additional errors, or ask the leave of the court for that purpose. In no view then can the denial of the several motions of the plaintiff in error, be regarded as fatal to the judgment of the circuit court. The writ of error then, brings up the case in the same plight as when it was previously before us. It is not allowable to sue out a second writ of error, to revise the same questions as were presented on a former, but its operation must be restricted to matters subsequently arising, or which have passed in rem judicatum. 4 Har. & J. Rep. 440, 497; 9 Gill & J. Rep. 31; 7 Pick. Rep. 145; 7 J. J. Marsh. Rep. 330; 2 Id. 368; 4 Blackf. Rep. 489. The consequence is, that the writ of error must be dismissed. What we have said, will also serve as an answer to the application for a mandamus. If it had been competent for the circuit court to have allowed the assignment of other errors than those passed on, no others were assigned; those in the transcript could not have been aided by the amendments proposed. A mandamus then, would be unavailing to affect the judgment complained of. The motion is therefore denied.