
    MAHAN vs. LESTER.
    1. Before the passage of the act of 1S50, (pamphlet Acts 81,) in cases of forcible entry and detainer, unlawful detainer, &a., removed into the Circuit Court by certiorari, a trial must have been had on an assignment of errors on the record sent up by the justice of the peace, and not de novo; and if the party whose duty it was to assign errors, failed or refused to do so, the judgment of the justice must have been affirmed.
    2. The act of 1850, which requires a trial de novo to be had in such cases, does not apply to cases which had been removed to the Circuit Court, and which were there pending at the passage of the act.
    3. Where the petition for a certiorari had been presented to the Circuit Judge, and his fiat obtained, and these had been filed with the clerk of the Circuit Court before the passage of the act, the jurisdiction of that court attached, and the act of 1850 cannot apply to the case, although the bond required by the judge was executed, and the writ of certiorari issued, after the passage of the act.
    4. When a trial de novo is improperly had in the Circuit Court, in a cause which was there pending before the passage of the act of 1860, the judgment founded upon the verdict of the jury will be reversed in the Appellate Court, although the plaintiff in error is the party who sued out the certiorari, and who failed to assign errors in the Circuit Court.
    Erroe to the Circuit Court of Tallapoosa.
    Tried before tbe' Hon. E. Pickens.
    
      Lester commenced a proceeding, under tbe statute, against Maban, before a justice of tbe peace, for tbe unlawful detain-er of tbe possession of certain lands described in tbe proceedings ; tbe jury, trying tbe case before tbe justice, rendered a verdict against tbe defendant, and judgment was given accordingly. On tbe 5tb of February, 1850, tbe defendant exhibited bis petition, for certiorari, to tbe Judge of tbe Ninth Judicial Circuit, who, by bis fiat without date, ordered tbe cer-tiorari to issue. This petition and fiat appears, by tbe memorandum of tbe Clerk of tbe Circuit Court, to have been filed in bis office on tbe 9th day of February, 1850, tbe bond required by tbe fiat to be given was executed on tbe 23d February, 1850, and tbe writ of certiorari was issued on tbe same day. When tbe case was called for trial in tbe Circuit Court, at tbe Fall Term, 1850, Lester moved to dismiss tbe case for want of an assignment of errors by tbe party suing out tbe writ of certiorari, but tbe court overruled tbe motion, and directed tbe cause to be tried de novo, notwithstanding tbe objection of Lester’s counsel.
    The parties then, under tbe order of the court, proceeded to try tbe case de novo, when Maban took several exceptions to tbe ruling of tbe court, as shown by a bill of exceptions in tbe record. Tbe jury returned a verdict for Lester, tbe plaintiff, (as tbe case stood on tbe docket,) and a judgment was given against him for costs, but it appearing that be bad' previously surrendered the possession, no writ of restitution was ordered. =
    Tbe case is brought to this court by writ of error, sued out by Maban, and be assigns for error the matters set forth in the bill of exceptions, and in tbe record of tbe Circuit Court.
    L. E. PARSONS, for plaintiff in error.
    Falkner & Rice, contra.
    
   LIG-ON, J.

Tbe rules regulating proceedings in tbe Circuit Court, in cases of forcible entry and detainer, brought before it by certiorari, have demanded tbe attention of this court from a very early period, and are scattered through many of its decisions, so that, under tbe law as it bad been settled, before tbe passage of tbe act of 12th February, 1850,-tbe courts could experience but little difficulty with regard to them.

As early as 1822, it was held, that the trial in the Circuit Court must be on the record sent up by the Justice of the Peace, and not da novo before a jury. Ala. Rep. 99. At the January Term, 1830, the court advanced one step further in settling the practice, and in Durham v. Carter & Carroll, 2 Stew. 497, it was held, that the trial must be on errors assigned in thej-ecord. In Aldridge v. Hightower, 4 Por. 418, still further progress was made, and it was held, that, if the party removing the cause to the Circuit Court by certio-rari, failed to assign errors, the judgment of the Justice should be affirmed. This rule is again laid down in Bell v. Killcrease, 11 Ala. Rep. 685, and may now be regarded as the settled rule for the government and disposal of all cases of this class, which are not within the influence of the provisions of the act of 12th February, 1850, above referred to.

It is perfectly clear, that if the new rule established by the act of 1850 does not apply to this case, the court below committed a fatal mistake, in refusing to require Mahan to assign errors, as requested by the counsel of Lester, and in not entering a judgment of affirmance on his failure to do so.

The Circuit Court, however, decided that the cause must be tried under the act of 1850, and although the record shows that Lester, by his counsel, objected to this ruling, yet it appears that instead of suffering his suit to be dismissed by the court for his refusal to proceed in it, as he might safely have done, he entered into the trial da novo, and succeeded in obtaining a verdict and judgment.

During the progress of the trial da novo in the Circuit Court, the defendant excepted to the ruling of the court on several points shown in the bill of exceptions, but as that proceeding was, in our opinion, wholly unauthorized and irregular, and the judgment in it essentially different from the one which the law would pronounce, we deem it unnecessary to examine the rulings, of the court with regard to the testimony.

The act of 1850 (session acts 81) could not, from the nature of the provisions contained in it, have been intended by the General Assembly to apply to any case which had been decided by a Justice of tbe Peace, and brought into- the Circuit Court by certiorari, before its passage. The first section of the act provides, that after its passage, “ all cases of forcible entry and detainer, forcible detainer, and unlawful detainer, which may be removed to any Circuit or County Court pursuant to law, shall be tried de novo,” &e. The second section provides, “that any person agrievedby the judgment of any Justice of the Peace, or the verdict of a jury trying such cause, shall have the right of appeal to the next Circuit,or County Court sitting for the county in which such cause may have been pending,” &c. In the third section this language is employed: “ That in every such case hereafter to be tried, it shall not be the duty of the Justice to mate out a complete record of the proceedings,” &c.

When these several pi’ovisions are taken together, they seem to exclude the idea that they were intended to be applied to any causes except such as are tried before the Justice, according to them. Before the passage .of this act, the Justice was required to make a record of the proceedings before him, and of so much of the evidence as was objected to; no appeal was allowed, and the County Court had no jurisdiction whatever, (Clay’s Dig. 253, § 18; 2 Stew. 496); but in the cases intended to be included in this act, that Court has concurrent jurisdiction with the Circuit Court. Doubtless the Legislature intended to provide a rule for such cases as might arise, or find their way into the Circuit and County Courts after its passage, and not to regulate the manner of proceeding in those already pending in the Circuit Court.

But it is insisted that this cause cannot be regarded as having been pending, in the Circuit Court at the passage of the act of 1850, and consequently was rightly subjected to its provisions in the form and manner of trial. This is predicated on the supposition, that although the petition was presented to the Circuit Court Judge, andjiis fiat obtained for the certiorari, and both the petition and fiat were filed with the clerk before the passage of the act, yet the bond was not executed, nor the writ of certiorari issued, until ten days after its passage, and that, until the bond was given, the case was not in the Circuit Court.

It may be replied, that the bond, on the execution of which so much stress is jfiaced in the objection, is not required by tbe statute, and consequently its execution is neither indispensable nor necessary to give the Circuit Court jurisdiction. Whether a bond shall be given or not, is left to the discretion of the Judge granting the fiat for the writ of certiorari. Clay’s Dig. 251, § 18; Childress v. McGehee, Ala. Rep. 131.

But in this case, other considerations show conclusively that the jurisdiction of the Circuit Court had attached before the passage of the act. The petition had been presented to the'Judge, his fiat obtained, and these filed with the Clerk of the Circuit Court, before the approval of the law. These are the incipient steps necessary, in cases of this kind, to call the jurisdiction of that court into action; it attached the moment the fiat was granted by the judge, and was rendered complete and active by the execution of the bond, and issue of the writ of certiorari and notice; the former to bring up the record, and the latter to bring in the opposite party. These relate back to the petition and fiat, and thus fix the period at which the suit may bo said to have been pending in the Circuit Court, at the point of time when the first legally authorized stops were taken to bring up the record, or in other words, when the petition was presented and the fiat of the Judge obtained.

The act of 1850 is not the law regulating the proceedings of this case, and so far as any were had under it, they were wholly irregular, and cannot be allowed to effect detrimentally the rights of the parties. The unwilling acquiescence of Lester in the trial de novo, will not render it regular, and consequently the judgment rendered in it, founded, as it appears by the record to be, on the verdict of the jury, cannot be supported. The only judgment which the court could have rightfully rendered, must have been founded alone on the record sent up by the J ustice of the Peace, and could have been none other than one of affirmance or reversal, on errors assigned.

In the court below, the plaintiff moved to dismiss the case for the want of an assignment of errors, which was refused, and as it appears by the record, the court, without any further action of either party, but mero motu, directed a jury to come, and a trial de novo to be had. The motion to dismiss was rightly refused. The judgment of the court, in case the party bringing the cause into it refused or failed to assign errors, should not have been one of dismissal, but o'f affirmance for the want of assignment of errors. 11 Ala. Rep. 685. The case, then, stands as though no order had been taken in it in the Circuit Court, except the judgment, which is irregular and erroneous, and it must be remanded to that court, that it may be proceeded in according to the law as it is declared in this opinion.

Let the judgment be reversed, and the cause remanded.  