Guscott v. Roden & Co.

BBICKELL, C. J. The more material question of the case, in view of the argument of counsel,is, whether the certiorari by which the cause was introduced into the circuit court, is to be regarded as a common law certiorari, or a statutory certiorari, but a form of appeal, by which causes tried before a justice of the peace are removed into the circuit court for a trial de novo. The circuit court regarded it as of the latter character, and in that opinion we concur. The order for the issue of the writ proceeded from the judge of probate, while the issue of a common law writ must proceed from the superior tribunal into which it is proposed to remove the cause, or from the order of a judge thereof. The statute invests the judge of probate with authority “to grant writs of certiorari on any civil judgment rendered by a justice.” — Code of 1886, § 795. General as are the terms of the statute, it must be referred to the statutory certiorari. It is an elementary rule, that statutes ihust be read and construed in the light of the common law, and are not to be regarded as infringing upon its rules and principles, save so far as may be expressed- or fairly implied to give them full operation. — 1 Kent, 464. The writ of certiorari as known to the common law, is not a writ of right — it is not issued as of course. Whether it shall issue, rests in the sound judicial discretion of the judge or court to whom application for the writ may be made. — Harris on Certiorari, § 49. A construction or interpretation of the general words of the statute, extending them to the grant of the common law writ would innovate on the rules of the common law further than is necessary to render the grant of authority effectual. It would devolve on the judge of probate the exercise of a high and delicate judicial discretion the common law carefully commits only to the court or the judge thereof having revisory or appellate jurisdiction. In its nature, the common law writ is strictly a revisory remedy, intended for the correction of errors of law [637] apparent on the face of the record, and which go the jurisdiction of the inferior tribunal. It is not a substitute for an appeal, and will not reach mere error or irregularity not affecting jurisdiction. — 2 Wait’s Actions & Defenses, 137 ; Dean v. State, 63 Ala. 153 ; Independent Publishing Co. v. American Press Association, 102 Ala. 475. As is said in Tallmadge v. Potter, 12 Wis. 317: “The object of that writ is to confine inferior tribunals within their jurisdiction — to prevent them from exercising power not delegated to them — and not to correct every error they may commit in executing the powers that are delegated. The operation and effects of our statutes is, that on an appeal or certiorari from a judgment of the justice of the peace, there shall be a trial de novo upon the merits of the case without regard to the judgment of the justice. By the appeal or certiorari, that judgment is vacated, and ceases to have any force or effect, either as an estoppel or as matter of evidence. — Harsh v. Heflin, 76 Ala. 499 ; Burns v. Howard, 68 Ala. 352 ; Abraham v. Alford, 64 Ala. 281. When the appeal is lost by the lapse of time, as it was lost in this case, it has been said by this court that a certiorari should not be awarded, unless the petition averred good reason for the failure to appeal within the time prescribed by the statute.— Wright v. Gray, 20 Ala. 363. But if granted without such averment, the cause cannot be repudiated by the court to which the writ is returnable. — Casey v. Briant, 1 Stew. & Port. 51; Wright v. Gray, supra; Van Eppes v. Smith, 21 Ala. 317 ; Washington v. Parker, 60 Ala. 447. The policy of the statute, as wo have said, is to favor a speedy trial of such causes upon their merits, without rigid scrutiny into the mode of their introduction into the higher court. Whatever may have-been the insufficiencies of the petition for certiorari, and whether it disclosed any defense to the cause of action, or the character of defense disclosed, was not an inquiry for the circuit court. The duty of the court was to proceed, as it proceeded, to a trial de novo on the merits, without regard to the rulings or judgment of the justice. The trial was had, without the intervention of a jury, on a single issue — the validity as against the appellant, of the clause in the promissory note on which the suit was founded, waiving the exemption of personal prop [638] erty. The facts were undisputed — the matter of admission by the parties. The notes were given by Nisbett in the name of the partnership to close an account due from the partnership to the appellees. The insertion of the clause of waiver in the notes was without the authority of the appellant and without his knowledge or conseiit. Under these facts, the waiver was not binding on the appellant, and would not authorize the rendition of a judgment against him, containing a declaration of a waiver of the exemption of pei'sonal property. — Terrell v. Hurst, 76 Ala. 588; Reed Lumber Co. v. Lewis, 94 Ala. 627. This was the form and-the character of the judgment the circuit court rendered; and the error of its rendition compels a reversal, rendering a consideration of all other assignments of error unnecessary. The litigation in the circuit court and in this court was rendered necessary by the insistence of the appellees upon the validity of the waiver clause in the notes. The case falls within the statute (Code of 1886, § 3409), and subjects the appellees to liability for the costs incurred in the circuit court. • The judgment of the circuit court must be reversed, and a judgment will be here rendered in accordance with this opinion. Reversed and rendered.