Opinion
6 Div. 521.
January 24, 1918. On Rehearing, April 25, 1918.
Appeal from Circuit Court, Jefferson County; J. E. Blackwood, Judge.
James L. Cole, of Montevallo, for appellants. W. M. Woodall and Robt. J. Wheeler, both of Birmingham, for appellee.
Good pleading should have suggested that the petition for the statutory certiorari name the judge or the division of the inferior court rendering the judgment sought to be reviewed, but the petition was sufficient to authorize the probate judge to act and when he issued the fiat, which was within six months of the rendition of the judgment, this operated as a timely removal of the cause to the circuit court as the "Birmingham court of common pleas" is but one court though composed of two judges, under the act of 1911 (Local Acts, p. 372), and it matters not that the writ as finally issued by the circuit clerk was more than six months after the rendition of the judgment by the court of common pleas. Wright v. Hurt, 92 Ala. 591, 9 So. 386.
We held, upon a former consideration of this appeal, that the probate judge had no authority to grant this writ, as his right to do so was confined by subdivision 3 of section 5430 of the Code of 1907, to civil judgments rendered by a justice, and did not extend to the court of common pleas, but in arriving at this conclusion section 10 of the local act escaped our attention, and which provides that the law relating to appeals and certiorari in cases from courts of justices of the peace shall apply to appeals and certiorari from this court.
It has been suggested that, as the petition in this case showed that the judgment was rendered without service, it was void and would not support an appeal, and that the statutory certiorari could only be issued to review an appealable judgment and not one that was coram non judice. As an original proposition this writer thinks there is merit in the suggestion under Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 So. 341; Cottingham v. Smith, 152 Ala. 664, 44 So. 864; Smith v. Patton, 128 Ala. 611, 30 So. 582. This point, however, has been recently settled by the court, contrary to the appellee's suggestion over the dissent of the writer in the case of Roddam v. Brown, ante, p. 109, 77 So. 403.
It follows that the trial court erred in dismissing the certiorari and in not trying the cause upon its merits, and the judgment is reversed and the cause is remanded.
Reversed and remanded.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.
On Rehearing.
Upon the first consideration of this case the court, being cognizant of the statute to the effect that the cause had to be removed within six months, held that it was not removed in time, as the writ was issued more than six months after the rendition of the judgment, notwithstanding the fiat was issued within six months. In doing this we read the case of Wright v. Hurt, 92 Ala. 591, 9 So. 386, as counsel now seems to understand it, that is, that it took the writ instead of the fiat or order of the judge to remove it; but upon a reconsideration of the case upon rehearing we observed that the Wright Case, supra, further on holds that when the judge to whom the petition is addressed, "orders the issuance of the writ, the case is thereupon to be treated as effectually removed to the circuit court for a new trial."
The other proposition suggested by counsel was settled adversely to his contention in the case of Roddam v. Brown, by the court en banc, notwithstanding the dissent of the present writer.
The application for rehearing is overruled.