SULLIVAN vs. ROBINSON

SULLIVAN vs. ROBINSON. [^PROCEEDINGS UNDER SEARCH-WARRANT.] 1. Parties to appeal, or'certiorari. — When an order is made by a. justice of tlie peace, on the hearing under a search-warrant, (Code, sections 3774-91,) directing the constable to deliver to the claimant the property described in the warrant, the proceeding loses the character of a public prosecution, and becomes a civil cause, between the claimant, as plaintiff, and the defendant; and it may be so described, without naming the State as a party, when the proceedings are removed by certiorari, at the instance of the defendant, into the circuit or city court of the county. 2. Jurisdiction of justice, and of city court on appeal. — The iurisdiction of . a justice of the peace, under a search-warrant, to render judgment in favor of the claimant, for the return of the property described in the warrant, is purely statutory, and dependent on the ascertainment of the jurisdictional fact, that the property has been stolen or embezzled, as alleged in the affidavit for the warrant; and the ascertainment of that jurisdictional fact cannot be inferred from the mere rendition of a judgment in favor of the claimant; yet, if the proceedings are removed by certiorari, at the instance of the defendant, into the circuit or city court of the county, where such judgment is reversed and annulled, that court has no authority to order the restoration of the property to the defendant in the writ. Appeal from tbe City Court of Montgomery. Tried before tbe Hon. B. S. Bibb. The record in tbis case shows that, on tbe 6th June, '1864, Mary Sulhvan made affidavit, before a justice of tbe peace, tbat two bogs were stolen from her premises on tbe 11th March preceding, and tbat she bad cause to believe, and did believe, tbat Patrick Robinson “ did steal, take, and carry away said bogs, with intent to convert them to bis own usetbat tbe justice thereupon issued a search-warrant for tbe examination of tbe defendant’s premises, returnable before himself on tbe same day; tbat tbe writ was executed by a constable, whose return stated tbat be found tbe bogs in tbe defendant’s possession; tbat tbe cause was beard before tbe justice on tbe 27th June, 1864, when a judgment was rendered by him, which was thus entered on bis docket: “ Judgment rendered in favor of plaintiff, and order issued and delivered to J. Peacock, constable, to deliver tbe bogs described in tbe warrant to Mary Sullivan, claimantand tbat on tbe 29th June, 1864, tbe defendant bled a petition for a certiorari, to remove tbe proceedings into tbe city court. Tbe petition alleged, that tbe two justices before whom tbe case was beard,,“ in rendering judgment in said case, publicly announced in tbe court-room tbat they acquitted tbe defendant of all criminal intent in 'taking tbe bogs, and that they believed be acted conscientiously in claiming them as bis property, or words of that import; but that they believed, from the weight of the testimony in the cause, that the hogs belonged to Mrs. Sullivan, the claimant.” On the trial in the city court, as the bill of exceptions states, “the plaintiff moved to strike the cause from the docket, on the ground that the case before the justice was in the name of the State as plaintiff, while the cause entered on the docket in the city court was in the name of Mary Sullivan as plaintiff” ; and she also moved to dismiss the certiorari, “on the ground that it was issued to bring up a cause in which Mary Sullivan was plaintiff, and Patrick Robinson was defendant, while the papers sent up by ■the justice show that the cause was a search-warrant, in which the State was plaintiff, and Patrick Robinson defendant.” The court overruled both of these motions, and the plaintiff excepted to its decision. The defendant then moved to quash the proceedings had before the justices, “on the ground that they had no jurisdiction to render the judgment set out in the transcript returned to the city court.” The court sustained this motion, and rendered judgment, “that the proceedings had in this cause before the magistrate be quashed and held for náught, and that the property sued for be returned to the defendant”; to which ruling and judgment the plaintiff also reserved an exception. The judgment and rulings of the city court, to which exceptions were reserved, are now assigned as error. A. B. Clitherall, for appellant. MARTIN, BALDWIN & Sayre, contra. [MAJORITY — STONE, J.] STONE, J. We do not think there is any error of parties in this case. When an order is made under section 3786 of the Code, for the delivery of property to the claimant ox-owner, such order loses the properties of a State prosecution, and becomes, as between them, a civil proceeding. Only Mary Sullivan, the complainant, and Patrick Robinson, are interested in the affirmance or reversal of this order. See Creighton v. Paine, 2 Ala. 158. The powers of a justice of the peace, which were invoked and exercised in the present case, are purely statutory, and. summary. In sucb cases, tbe record must positively affirm every thing which is necessary to uphold the jurisdiction, or justify the order made. The jurisdiction cannot rest on intendment.—See Connoly v. Ala. & Tenn. Rivers Railroad Company, 29 Ala. 373, and authorities cited; Logwood v. Bank of Huntsville, Minor, 23; Bates v. Planters & Merchants’ Bank, 8 Porter, 99; Lamar v. Commissioners’ Court, 21 Ala. 772; Commissioners’ Court v. Thompson, 15 Ala. 134; Commissioners’ Court v. Bowie, 34 Ala. 461; Code, section 3786. The power of -the magistrate, or justice of the peace, under section 8786 of the Code, to cause the property to be delivered to the owner, is limited to cases in which such property was “stolen or embezzled.” The ascertainment of the fact that-the property was “stolen or embezzled,” is the jurisdictional fact in the cause, which alone authorizes the justice to make the order. The present record does not affirm that fact to exist; and under the authorities cited supra, we are not at liberty to infer its existence from the brief statement, “judgment rendered in favor of plaintiff,” as found in this record. The city court rightly adjudged, that the proceedings had before the justice, so far as they award an order for the delivery of the hogs to the claimant, be set aside, annulled, and quashed. That portion of the order of the city court, which directs that the property sued for be returned to the defendant, was unauthorized, and is therefore- reversed. Reversed and here rendered.