WILSON vs. SCOTT

WILSON vs. SCOTT. [CEBTIOEABI TO CTTZ COUBT.] 1. Probate judge, authority of, in granting torito of certiorari. — The probate judge of Montgomery county has no authority to award a writ of certiorari, returnable to the city court of Montgomery. Appeal from tbe City Court of Montgomery. Tried before Hon. T. M. Arrington. Tbe appellee instituted Ms suit against tbe appellant on tbe 7th day of January, 1867, in a justice’s court, and judgment having been rendered in that court against appellant, be applied to tbe probate judge of Montgomery county to grant Mm a writ of certiorari to remove tbe cause into tbe city court of Montgomery. Tbe probate judge awarded tbe certiorari, and tbe cause was removed info the said city court, where, on motion of appellee, it was dismissed upon tbe ground, that tbe probate judge had no authority to grant a certiorari, to remove a cause from a justice’s court to tbe city court of Montgomery. Tbe appellant assigned as error this ruling of tbe city court. Watts & Tkoy, for appellant. Martin & Sayre, contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. Tbe authority of the probate judge to award a certiorari, returnable into tbe circuit court, is derived from tbe statute, and cannot be extended by construction to certioraris, returnable into tbe city court. Revised Code, § 796. Tbe act establishing tbe city court of Montgomery, does not give the same extent of authority of awarding a certiorari, which previously pertained to tbe probate judge, in reference to tbe circuit court. — Stevenson v. Ohara, 27 Ala. 126; Matthews, Finley & Co. v. Sands, 29 Ala. 136; Flash, Hartwell, Cook, & Co. v. Paul, Cook & Co., ib. 141; Lewis v. Dubose, ib. 219. Affirmed.