McDaniel v. Moody

3 Stew. 314

Opinion

By JUDGE PERRY.

Without noticing any of the causes assigned for error, we will proceed to dispose of this case, for want of jurisdiction, in the first place in the justice of the peace, and consequently of the County Court, over the subject matter of controversy. In determining this question, it will be only necessary to consider the nature of the property, which was the subject of trial before the justice of the peace, the same being a gin house, .running gear thereof, and a packing screw, and if it be found that the property in dispute are fixtures and belong to the realty, it will at once appear, that the justice had no right to award a venire facias, to try the title. Real property then consists of land, and includes all houses and other buildings standing thereon, erected for the enjoyment of the freehold, of a permanent and immovable nature. The improvements in question, are as permanent and immovable, and as necessary to the enjoyment of the freehold, as any other fixtures whatever, and the freehold interest would be as much deteriorated by their removal, as by that of a house of the same value, and indeed, when we consider the object of erecting such improvements, we are driven to the conclusion, that they are in this country, among the most permanent improvements of freehold estates; that they are fixtures, inseparable from the really, and would pass with the freehold.

Having arrived at this conclusion, it remains to be inquired, how far the title to land can be affected by proceedings had before justices of the peace. The legislature in 1818,

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a passed a law upon this subject, in which it is said “whenever it shall hereafter become necessary for want of personal property to levy an execution, issued by a justice of the peace upon land, it shall be the duty of the officer levying such execution, to return the same to next superior Court of his county, and such Court shall, on motion of the plaintiff, and it appearing by an exhibition of the proceedings before the justice, that the same have been regular order, a sale of such land, or whatever part may be necessary to satisfy such execution.” From the provisions of this statute, it is clear (hat the Circuit Courts are vested with the exclusive jurisdiction, as regards the sale of real property, when levied on by-execution, issued by a justice of the peace, and the legislature has been so cautious as to require that the Circuit Courts should be satisfied that the proceedings of the justice of the peace were regular, or in other words, that they were in accordance with the principles of law. Thus they have taken from the justice all jurisdiction over the realty, in order that the title to that species of property might be better protected and made more secure. If land then can only be levied on by execution, issued by a justice of the peace, in default of personal property, it cannot be made subject to attachment, issued by a justice of the peace, upon a debt within his jurisdiction, because the statute subjecting lands to the payment of debts within a justice’s jurisdiction, does it alone for want, of real property, which the officer is bound to certify to the Circuit Court, when he returns the execution, for the purpose of having the land sold, which he could not do upon attachment. The justice of the peace therefore having no jurisdiction to try the title to real property, it will be conceded at once that the County Court could have no authority to correct that error by a trial de novo.

This case is not within the rule which confines this Court to the errors assigned. That rule presupposes that the Court below had jurisdiction, and that the cause would be affirmed, reversed, or remanded, according as the law should require. But in this, there can be no such judgment-as that of reversing and remanding, for the want of jurisdiction in the Court below to execute it. This Court is therefore of opinion that the judgment be reversed.

Judgment reversed.

Lipscomb, not sitting.

Laws of Ala. 315.