Crownover v. Srygley

19 Ala. 251

• Court: Supreme Court of Alabama
• Decided: January 15, 1851
• Status: Published

Opinion

PARSONS J.

Crownover recovered a judgment against Sryglcy, before a justice of the peace in Lawrence county, the latter removed the cause by certiorari to the county Court, at its January term, 1818, which was the first term after the cer-tiorari was granted,'and a judgment of nonpros, was entered against Crownover at that term, who had no notice of the cer-tiorari, or of any of the proceedings thereon, so far as the record shows, nor was there any attempt to give him notice. We are not satisfied that the statute which secures to the appellee in a judgment rendered by a justice of the peace, a right to notice of the appeal, (Clay’s Dig. 315) can be construed so as to extend to certiorari cases. We think that cases- removed by certiorari were not within the contemplation of the Legislature, and they are not within its language.

And it has been settled that the statute which gives damages when it appears to the court that an appeal was taken for delay merely, does not apply to cases removed by certiorari.—Hudnell v. McCartney, Minor’s 402; Childs v. Crawford, 8 Ala. 731. The principle is therefore settled, that those statutes which speak of appeals merely, do not include causes that are recovered) by certiorari from a justice of the peace,, or at least1 that is so in respect of this case.

But we- are satisfied that upon the principles of natural justice, and' of the common law, a man. can neither recover a judgment, nor lose the benefit of one which he has recovered, by any judicial proceedings without notice.

The judgment of the County Court is therefore reversed. But as that court is now abolished, and the causes in it transferred to the Circuit Court of Lawrence, under the late act,, this» cause is. remanded to the said Circuit Court.