Cushman v. Commissioner's Court

49 So. 311, 160 Ala. 227, 1909 Ala. LEXIS 24

• Court: Supreme Court of Alabama
• Decided: April 15, 1909
• Status: Published

Opinion

MAYFIELD, J.

The circuit court of Blount county quashed and dismissed appellant’s certiorari by which he sought to have the circuit court annul and vacate a proceeding in the commissioners’ court of Blount county to order an election, and declare the result, to establish a stock law district for Oneonta precinct, in Blount county.

We are unable to agree with counsel for appellant that the proceedings in the commissioner’s court, sought to be quashed and vacated by appellant, were void on their face; but, on the contrary, such proceedings appear to us to be unassailable, and certainly so by the common law certiorari, which is never the proper remedy unless the proceedings are absolutely void. We find nothing omitted from the proceedings necessary to validity, nor are there any recitals upon the face of the proceedings which contribute to their own invalidity. The proceedings assailed appear to be in strict compliance with the statute providing for thé same. Consequently appellant could not have been injured by the order or judgment of the court in dismissing his certiorari, and the case is affirmed upon the authority of Wilborn v. DeKalb County, 155 Ala. 192, 46 South. 585, and Brazeel v. Blount County, 155 Ala. 196, 46 South. 584.

Certiorari at common law was an original writ issuing out of Chancery, or the King’s Bench, directed in the King’s name, to the agents or officers of inferior courts, commanding them to return the record of the cause pending before them, to the end that the party may have the more sure and speedy justice before him, or such other justice as he shall assign to determine the cause. — Dean v. State, 63 Ala. 153; 2 Macon’s Abr. 165.

The judgment of the circuit court is affirmed.

Dowdell, C. J., and Simpson and Denson, JJ., concur.