Smith v. Patton

128 Ala. 611

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

TYSON, J.

The appellant was sued in a justice court, and a judgment was rendered against him. After the expiration of the time allowed within which an appeal could have been prosecuted to tbe circuit court, he sued out a statutory writ of certiorari. On motion bis certiorari, was dismissed, 'and this appeal is prosecuted from tbe judgment of tbe circuit court dismissing it.

Tbe second ground of tbe motion alleges that tbe judgment in the justice court was satisfied, paid and extinguished before the. writ of certiorari was sued out. If this allegation was true in point of fact, there was a waiver or abandonment by the defendant of bis right to have the case tried tic uoro by tbe circuit court upon bis certiorari, which is accorded tbe same effect and operated as an appeal by the statutes. — Code, §§ 481-488; 2 Ency. Pl. & Pr. 175 and notes; Hall v. Hrabrowski, 9 Ala. 278; Bradford v. Bush, 10 Ala. 274.

But aside from this, each ground of the motion presented a disputable issue of fact and there seems to have been a rejoinder of issue upon tbe motion.

Tbe record 'contains no bill of exceptions, and, therefore, tbe evidence upon which tbe lower court acted in granting the motion is not before, us. A Ye must presume, upon tbe state of tbe case as shown by the record, that there was sufficient evidence before the court to' warrant the finding of fact necessary to sustain the judgment of dismissal.

Affirmed.