Louisville & Nashville Railroad v. Solomon

138 Ala. 151

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

TYSON, J.

Whether the court properly overruled the demurrer to the appellant’s petition for the writ of certiorari and correctly quashed the proceedings and annulled the judgment rendered by the justice are questions not presented for review by this appeal. We, therefore, express no opinion upon them. Having annulled the judgment rendered against the petitioner, appellant here, by the justice and directed'the issuance of a writ of procedendo to that officer to retry the case, did the court have authority to tax the cost of this proceeding against the petitioner? This is the only question for our consideration.

The theory of appellant's counsel, and it is the only one upon which the judgment could be sustained, is, that the petition was for a common law writ of certiorari and that the judgment properly awarded the relief to which Ids client was entitled, (Independent Pub. Co. v. Amer. Press Asso., 102 Ala. 475), except as to costs, the petitioner’s light-to recover costs is not governed, as counsel suppose, by section 1325 of the Code, but by section 2831 which vests in the court a discretion in the matter of its taxation that is not revi sable.

Affirmed.