Hines v. Tribble

WALKER, P. J. The petition for the writ of certiorari in this case in showing the rendition by the inferior court of a merely erroneous judgment in a cause of which it had jurisdiction of the subject-matter and of the parties, from which judgment an appeal lay, disclosed that it was not a case for the issuance of the common-law Avrit of certiorari, as in civil cases, when the remedy by appeal affords full and complete redress, the common-law writ of certiorari may not properly issue.—Lawler v. Lyness, 112 Ala. 386, 20 South. 574; Independent Publishing Co. v. American Press Association, 102 Ala. 475; 15 South. 947. Its showing that in the detinue suit, in which the petitioner as the plaintiff made the bond provided for by section 3780 of the Code of 1907, and thereby secured the delivery to himself of the property sued for, there was a judgment for the defendant, without any assessment of the value of the property, as required by section 3781 of the Code, was a showing of a mere error in the pro [239] ceedings which was curable on a trial de novo on appeal.—Clem v. Wise, 133 Ala. 403, 31 South. 968; Jernigan v. Willoughby, 159 Ala. 650, 58 South. 812; McCullough v. Floyd, 103 Ala. 448, 15 South. 848. As the petition could be regarded as sufficient to sustain a statutory writ of certiorari issued under it, and as the bond given to secure the issuance of the writ under the order made by the circuit judge on the presentation of the petition to him was in compliance with the requirements of the statute (Code, § 4714) as to the bond to be given to secure the issuance of the statutory writ of certiorari, the writ issued may be treated as the statutory writ of certiorari, having the effect of removing the case into the circuit court for trial there de novo.—Guscott v. Roden & Co., 112 Ala. 643, 21 South. 313; Wright v. Hurt, 92 Ala. 591, 9 South. 386; Webb & Stagg v. McPherson, 142 Ala. 540, 38 South. 1009. The case thus being in the circuit court for another ■trial, and the record brought up not disclosing that the judgment rendered by the inferior court was void because of its lack of jurisdiction either of the subject-matter or of the parties, but showing only that it was merely irregular and erroneous, the court- was in error in rendering the judgment quashing the judgment of the inferior court, instead of proceeding to try anew the case so removed to it, and to render the proper judgment in it. Reversed and remanded.