Summary
In Bramlett v. Griffin, 222 Ala. 495, 133 So. 266, the Supreme Court, speaking through Bouldin, J., says: "The fiat of the judge of probate, and the execution of bond as per statute, vest the circuit court with jurisdiction as on appeal."
Summary of this case from Bell v. IsbellOpinion
7 Div. 19.
March 19, 1931.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
E. O. McCord Son, of Gadsden, for appellant.
Fraud vitiates everything it enters into. The affidavit seeking the writ being false, the whole proceeding was false. Hutson v. Miller, 148 Minn. 783, 114 So. 820; Brenard Mfg. Co. v. Pearson, 213 Ala. 675, 106 So. 171. A certiorari improvidently issued will be dismissed. Harris on Certiorari, 387; see U.S. H. A. Ins. Co. v. Hill, 9 Ala. App. 222, 62 So. 954.
E. G. Pilcher, of Gadsden, for appellee.
Brief did not reach the Reporter.
On statutory certiorari, in lieu of appeal from the judgment of a justice of the peace, or a court of like jurisdiction, the case is tried de novo in the circuit court.
The fiat of the judge of probate, and the execution of bond as per statute, vest the circuit court with jurisdiction as on appeal.
The sufficiency of the excuse for not taking an appeal in time cannot be questioned. This has been the rule from our earliest judicial history. It follows, no issue is to be raised in the circuit court as to the truth of the grounds presented in the petition for certiorari to the judge of probate as an excuse for not taking an appeal within five days. Code, § 8784; Dean v. State, 63 Ala. 153; Hatter v. Eastland, 22 Ala. 688; Casey v. Briant, 1 Stew. P. 51.
The rulings of the trial court were in accord with these rules.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.