Smith v. Atlanta Guano Co.

31 So. 490, 132 Ala. 586, 1902 Ala. LEXIS 56

• Court: Supreme Court of Alabama
• Decided: February 4, 1902
• Status: Published

Opinion

DOWDELL, J.

— Tlie present appeal is prosecuted from a judgment of the circuit court dismissing the appeal which, was taken to that court by the statutory certiorari from the justice court. The ground, of the motion for the dismissal in the circuit court was that the circuit court had dismissed a former appeal in said cause on account of a defect in the security or bond for said appeal, and the former judgment of dismissal was the sole ground for dismissal of the present certiorari proceedings.

In the case of Washington v. Parker, 60 Ala. 447, the certiorari was sued out within the five days, the time prescribed in the statute for talcing an appeal from a justice to the circuit court, and the circuit court on motion dismissed the certiorari because it was sued out before the right of appeal had been lost. .This court reversed the action of the circuit court in that case, and in doing so said:. “If the. circuit court was right in repudiating the cause, the result would be that on the rendition of its judgment the appellant could immediately sue out a certiorari and present the case by the same remedy and in the same mode that the court had repudiated.” We think this is a complete answer to* the question as to the judgment of dismissal of the former appeal being a bar'to the second. And on the authority of that case, Washington v. Parker, supra, the judgment of the circuit court will be reversed and the cause remanded. We speak of it as an appeal, because it is nothing more nor less than appeal by indirection. The proceedings are removed by this writ into the circuit court where the trial is had de novo just as on direct appeal.

Reversed and remanded.