Little v. Fitts

BICE, C. J.— The only question here is, whether the circuit court of Mobile had jurisdiction of the case. The execution was issued in December, 1854, by a justice of the peace of Tuskaloosa county, under a judgment rendered in that county in 1848, and was levied upon a slave by a constable in Mobile county. A claim to the slave was interposed, and thereupon a trial of the right of [345] property was had by a jury before a justice of the peace of Mobile county. The jury found the property not subject; but no judgment whatever appears to have been rendered by the justice before whom the trial of the right of property was had. The plaintiff in execution appealed, not from any judgment of the justice, for there was none; but from “ a judgment of seven men on trial of right of property for one slave Bob, before R. E. Butt, Esq., a justice of the peace for said county” of Mobile, &c. Upon these facts, we think the circuit court of Mobile had no jurisdiction. Its jurisdiction in trials of the right of property is derived from the statute. "We do not know of any statute which gives it jurisdiction of a trial of the right of property, when the levy is made by a constable, and under an execution issued by a justice in a different county from that in which the levy was made, and when there is no appeal from the judgment of a justice. There are trials of the right of property in which, by appeal from the judgment of a justice, the circuit court of Mobile has jurisdiction, although the levy may have been made by a constable.—Code, §§ 2883-2837, 2811, 2368. But this is not one of them.—Code, §§ 2804, 2805; Gunn v. Howell, 27 Ala. 663; Caldwell v. Meador, 4 Ala. 755; Dew v. The Bank of the State, 9 Ala. 323. [2.] Section 2368 of the Code applies only to “appeals and writs of certiorari from judgments of justices of the peace;” and therefore does not touch this case. In some cases of appeal from a judgment of a justice to the circuit court, the question arises as to what defects had been waived by the course of the appellee in the circuit court. See Vaughn v. Robinson, 20 Ala. 229. But no such question arises here; for no waiver or consent of the claimant, appearing in this record, can give the circuit court jurisdiction of the subject-matter and case.—Crabtree v. Cliatt, 22 Ala. 181. The result attained by the circuit court was authorized by law. And for the reasons given in this opinion, the judgment of that court is affirmed.