Mason v. Moore

Supreme Court of Alabama

Mason v. Moore

12 Ala. 578

CourtSupreme Court of Alabama

DecidedJune 15, 1847

StatusPublished

Cited by6 cases

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Bluebook

Mason v. Moore, 12 Ala. 578 (Ala. 1847).

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Opinion

GOLDTHWAITE, J.

Without stopping to inquire, whether the return of this certiorari to the circuit court, at the fiat of the county judge, or the relation in the petition that the judgment has long since been paid, are sufficient to distinguish this case from that of Alford v. Colson, 8 Ala. Rep. 550, where the rule is laid down, that motions to dismiss writs of certiorari must be made at the first term after appearance, we held the opinion, that here it was properly dismissed on account of the lapse of time. Previous decisions of this court show, that certiorari is not the proper writ to revise errors or irregularities accruing after judgment. [Bobo v. Thompson, 3 S. & P. 385; Wheelock v. Wright, 4 Ib. 103; Gray v. Dennis, 3 Ala. R. 717; Gilliland v. Ware, 4 Ib. 414.] But hitherto, no decision has been made as to the time within which a certiorari to examine the merits of the cause must be applied for. There is no statute prescribing a limitation for such re-examination, but writs of error from the county to the circuit, and from the circuit to the supreme court, are prohibited after the expiration of three years from the rendition of the judgment. [Dig. 309, § 17.] Courts of equity will not allow bills of review to be filed after the expiration of the period to which writs of error are limited, and we have held the statute as extending to writs of error coram vobis. [Richardson v. Williams, 5 Porter, 515.] It seems [580]*580equally reasonable to extend it to writs of certiorari, which, in relation to judgments of justices, operate as writs of error coram vobis, by allowing the re-examination of the cause upon its merits. In this case, it is shown by the return of the justice, that the judgment was given in September, 1840, The application to review it, is not made until March, 1846. We are clear, that after three years, no judgment of a justice can be revised by certiorari. There was therefore no error in dismissing the writ.

Judgment affirmed.

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GOLDTHWAITE, J.

Without stopping to inquire, whether the return of this certiorari to the circuit court, at the fiat of the county judge, or the relation in the petition that the judgment has long since been paid, are sufficient to distinguish this case from that of Alford v. Colson, 8 Ala. Rep. 550, where the rule is laid down, that motions to dismiss writs of certiorari must be made at the first term after appearance, we held the opinion, that here it was properly dismissed on account of the lapse of time. Previous decisions of this court show, that certiorari is not the proper writ to revise errors or irregularities accruing after judgment. [Bobo v. Thompson, 3 S. & P. 385; Wheelock v. Wright, 4 Ib. 103; Gray v. Dennis, 3 Ala. R. 717; Gilliland v. Ware, 4 Ib. 414.] But hitherto, no decision has been made as to the time within which a certiorari to examine the merits of the cause must be applied for. There is no statute prescribing a limitation for such re-examination, but writs of error from the county to the circuit, and from the circuit to the supreme court, are prohibited after the expiration of three years from the rendition of the judgment. [Dig. 309, § 17.] Courts of equity will not allow bills of review to be filed after the expiration of the period to which writs of error are limited, and we have held the statute as extending to writs of error coram vobis. [Richardson v. Williams, 5 Porter, 515.] It seems [580]*580equally reasonable to extend it to writs of certiorari, which, in relation to judgments of justices, operate as writs of error coram vobis, by allowing the re-examination of the cause upon its merits. In this case, it is shown by the return of the justice, that the judgment was given in September, 1840, The application to review it, is not made until March, 1846. We are clear, that after three years, no judgment of a justice can be revised by certiorari. There was therefore no error in dismissing the writ.

Judgment affirmed.

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12 Ala. 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-moore-ala-1847.

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