Ex parte Tarlton

2 Ala. 35

• Court: Supreme Court of Alabama
• Decided: January 15, 1841
• Status: Published

Opinion

COLLIER, C. J.

— There is no statute which provides for the revision, by this court, of a case such as that shewn by the record before us; and it is not necessary that we should take jurisdiction of it, in order to give to us “ a general superintendence and control of inferior jurisdictions.” The revisory authority of the Circuit Court of Montgomery, is adequate to a re-examination of the case, and to afford relief as ample as the law can grant. This being assumed, it is clear that this court is impliedly inhibited from issuing a “ remedial or original” writ to a Court of Revenue and Roads, unless, perhaps, where the Circuit Court of the county has, upon a formal application, refused its interference. [2 Sec. 5 Art. of the Con.] If the Circuit Court declines acting, or having taken jurisdiction of the case, mistakes the law, it will then be sufficiently early for a resort to this court.

We think a writ of error is not the proper mode for the removal of the case into the Circuit Court. In England, to which, in the absence of legislation, we look for rules to guide our practice and decisions, it is said to be well settled, that error does not lie, when the court whose judgment is complained of, acts in a summary manner, or in a new course different from the common law. [In the matter of Negus, 10 Wend. Rep. 38.] But in such a case the writ of certiorari is the appropriate remedy. In Ruhlan v. The Commonwealth, [5 Binn. Rep 26. 7.] it was held to be a general rule of law, that where a new jurisdiction is created by statute, and the court exercising it, proceeds in a summary method, or in a course differ-rent from the common law, a certiorari is the only proper remedy. To the same effect, see Savage v. Gulliver, 4 Mass. Rep. 178. Commonwealth v. Ellis, 11 ibid 465. Edgar v. Dodge, ibid 670. Ball v. Brigham, 5 Mass. Rep. 406. Bob (a slave) v. The State 2. Yerger’s Rep. 173. Lawson v. Scott, 1 Yerger’s Rep. 92. Wildy v. Washburn, 16, Johns Rep. 49. Sheet v. Francis, 3 Ohio Rep. 277. It lies to remove a proceeding for the recovery of a fine for negle ct of military duty; or to remove proceedings, laying out a highway. [Commonwealth v. Coombs, 2 Mass. Rep. 489. Pratt v. Hall, 4 Mass. Rep. 239.

Though the party who has submitted the motion to this court, has a clear remedy if he has been aggrieved, yet for the reasons stated, we must deny him the aid of this court in the situation in which he presents his case.