Bernard v. Fleming

Bernard v. Fleming. Certiorari. (Decided Jan. 11, 1911. 54 South. 515.) Certiorari; Judgment; Review; Grounds'. — Although a judgment was irregular and indefinite in failing to describe the contents and the value of the contents in a suit in detinue for a trunk- and its contents, it was not absolutely void, and hence, it .was not error to refuse to quash proceedings on review of them ufider a common law writ of certiorari. Appeal frm Birmingham City Court. Heard before Hon. H. A. Sharpe. Common-law certiorari on the petition of Blanche Bernard against Evelyn Fleming to review a judgment. From a judgment declining to quash the judgment on certiorari, petitioner appeals. Affirmed. As originally filed the complaint claimed for a trunk and contents. Before judgment the complaint was amended, setting out the contents of the trunk. After the amendment judgment was rendered as follows: “Judgment for plaintiff! and against the defendant for one trunk and contents, or its alternate value of $100.” Allen & Bell, for appellant. The judgment was void under sections 3778-81, Code 1907, because ‘it 'fails to ascertain tbe contents of tbe trunk and tbeir alternate value. — So. W. Go. v. Johnson, 85 Ala. 178; Tate v. Murphree, 80 Ala. 440; Johnson v. McLeod, 80 Ala. 433; J ones v. Anderson, 82 Ala. 302; s. c. 76 Ala. 428; Townsend v. Brooks, 76 Ala. 308. Tbe matter of tbe issuance of common law certiorari is one of discretion, and no bond is required. — Webb v. McPherson, 38 Ala. 109; Childress v. McGhee, Minor 131. Common law certiorari was tbe proper remedy in this case. — Glaze v. Blake, 56 Ala. 379; Cobb v. Johnson, 87 Ala. 281; Railway Go. v. Branon, 96 Ala. 461; Independent P. Go. v. Am. Press Assn., 102 Ala. 475. A. Leo Oberdorfer, for appellee. Tbe judgment was certainly not void, but if it may be criticised at all it was merely irregular. — So. Warehouse Go. v. Johnson, 85 Ala. 698. The question of jurisdiction does not enter into tbe case. — Clem v. Wise, 133 Ala. 409. Certio-rari was not tbe proper remedy. — A. G. S. v. Christian, Oberdorfer’s Alabama Justice Practice, 217. [MAJORITY — MAYFIELD, J.] MAYFIELD, J. A judgment in detinue, if irregular in failing to ascertain and fix tbe alternate value of each article sued for, as required by law, is not so in such sense as to compel tbe judgment to be annulled or tbe proceedings to be quashed on bearing of common-law certiorari for such purpose, though tbe judgment might be reversed for that reason on appeal. Tiie judgment in this cáse was for a “trank and its contents,” or its alternate value, fixed at $100. Tbe property was replevied by tbe defendant by tbe same description as that of tbe judgment. Tbe amended complaint more particularly described tbe articles contained in tbe trunk, and therefore the description in the judgment and the alternate value could have been more minute, yet the judgment was not absolutely void, and the city court did not err in declining to quash the proceedings in the justice or inferior court on the hearing of the common-law certiorari. Affirmed. Dowdell, C. J., and Simpson and McClellan, JJ., concur.