Washington v. Parker

60 Ala. 447

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BRICKELL, C. J.

In practice, a certiorari and an appeal are not regarded as concurrent remedies for the revision, or, rather, a trial de novo in the Circuit Court, of causes which have been decided by justices of tbe peace. A certiorari has been regarded as a remedy to which the party could resort, after by the lapse of time tbe right of appeal bad been lost. It has been said by tbis court, tbe certiorari should not be awarded, unless tbe petition avers a good reason for tbe failure to appeal.—Wright v. Gray, 20 Ala. 363. But, if granted without such averment, tbe cause cannot be repudiated by tbe Circuit Court, or tbe court to wbicb it is returnable.—Casey v. Bryant, 1 St. & Port. 51; Wright v. Gray, supra; Van Epps v. Smith, 21 Ala. 317. The policy of tbe statutes is to favor a speedy trial of such causes on the merits, without regard to defects or irregularities in the proceedings before the justice, or a rigid scrutiny into tbe mode of their introduction into tbe higher court. Tbe right to remove by certiorari is not by statute expressly confined to cases in which the right of appeal has been lost; and it would be in contravention of tbe well-defined policy to expedite tbe trial of snob canses on tbe merits, to repudiate them, when introduced by certiorari, because it appears the right of appeal was existing. An appeal is the more convenient remedy, more often resorted to, and therefore, in practice, has been regarded as primary, and not as concurrent with certiorari. If the Circuit Court was right in repudiating the cause, the result would be, that on tbe rendition of its judgment, tbe appellant could immediately sue out a certiorari, and present the case by tbe same remedy, and in tbe same mode tbe court repudiated.

There was error in dismissing the cause; and the judgment must be reversed, and tbe cause remanded.