Weedon & Dent v. Clark

McCLELLAN, J. — -There appears to have been a judgment rendered by the justice of the peace against the claimant, on October 24, 1888, an appeal to and trial by jury on the same-day, and a verdict rendered against claimant as to the property now involved, and in his favor as to other items condemned by the justice to the satisfaction of the execution, but no judgment was pronounced or entered on this verdict. The verdict itself, however, was recorded on the justice’s docket; and under our statute, which provides that on appeal or certiorari to the Circuit Court the case must be tried “de novo, and according to equity and justice, without regard to any defect in the summons, or other process or proceedings before the justice,” the verdict may, for the purposes of that appeal and this, stand for the judgment of the justice’s court. That was the only judgment in the case. It is an error to-suppose that the issuance of executions against the sureties on the claim bond, upon its return forfeited under section 3568 of the Code, is a judgment, summary or otherwise, and that the certiorari brought that action of the justice under review. The writ which was invoked here was that provided by statute, and its effect was to require a new trial in the Circuit Court, without any reference to the action of the justice’s court. Code, §§ 3400, 3405; Abraham v. Alford, 64 Ala. 281; Harsh v. Heflin, 76 Ala. 499. The general charge requested for the plaintiffs was properly refused. It proceeded on the theory, that the claimant had sold the property to his son. The evidence can not be said, as matter of law, to establish that theory. It bore a tendency, in one aspect, to show that there had been no sale by the claimant to his son, in that there had been no delivery essential to constitute a sale. At least the jury might have so found, and the charge would have deprived them of the right to so find. ■ The other charge requested for plaintiffs is bad upon like considerations. The facts that claimant told his son he [508] might have the mule in payment of a debt which claimant owed him, and that the son “said he would,” manifestly do not, of themselves, constitute a sale of the property. Affirmed.