
    Memphis & Charleston Railroad Co. v. Brannum.
    
      Application for Certiorari to Justice of the, Peace.
    
    1. Certiorari to justice, of the peace; when granted — Where it appears from the record and proceedings of a justice of the peace that a judgment was rendered by him without jurisdiction of the defendant’s person having been acquired in any manner, a writ of certiorari, as at common law, will be awarded to the defendant in such judgment to bring it up for revision ; an appeal to the Circuit Court not being an adequate remedy in such case, as the taking of such appeal would, by virtue of the statute (Code, § 3405), operate as a waiver of the objection that the justice of the peace had not acquired jurisdiction of the defendant’s person.
    Appeal from the Circuit Court of Madison.
    Tried before the Hon. H. C. Speake.
    Humes, Sheeeey & Speake, for appellant.
    1. There is nothing in the re cord to show that the Memphis & Charleston Itailroad Company was ever served with notice of the suit before the justice of the peace, or that Morrow was its agent. Such service as the record shows is not sufficient to sustain a judgment by default against a corporation — Southern Express Co. o. Oarroll, 42 Ala. 437; Oxford Iron Co. v. Spraclley, 42 Ala. 24; Code, § 2657, and cases cited; Black on Judgments, §§ 15, 80, 81, 83, 214, 218, 219, 224. 2. This is a case where there is a “clear legal right, and no other adequate legal remedy” — a case where we were never before the court which rendered the judgment now sought to be reviewed by the writ of certiorari. Adequate redress can not be had in such a case as this by appeal, because the effect of the appeal is to submit to the jurisdiction of a court that did not have jurisdiction at the time it rendered the judgment. 
      Glaze v. Blake, 56 Ala. 375; Ex parte Boynton, 44 Ala. 261; Gobi) v. Thompson, 87 Ala. 381; 3 Brick. Dig. pp. 106, 592.
    William; BiohaedsoN, contra.
    
    Tbe defendant bad its remedy by appeal from tbe judgment of tbe justice of tbe peace. Code, § 3398. Where an appeal lies, certiorari is not tbe proper remedy. — Ala. G. 8. R. R. Go. v. Christian, 82 Ala. 307; Gobi) v. Thompson, 87 Ala. 381; Oamclen v. Block, 65 Ala. 239.
   THORINGTON, J.

-This case originates from a suit commenced in tbe court of a justice of tbe peace, wherein appellee bad a summons issued to “Thomas G. Morrow, as agent of tbe Memphis & Charleston R. R.,” and tbe complaint filed lias tbe following cajition: “Jas. C. Brannum y. M. & C. R. R.” Tbe summons was endorsed, “Summons T. G. Morrow, as agent.” “Executed July, 1889.” Tbe docket of tbe justice contains tbe following entries : “July 18. Summons and subpoenas returned executed.” “July 27. Continued by defendant until Sept. 2nd, 1889.” It further shows a judgment by default entered Sept. 2nd, 1889, against “defendants.” Ón tbe 8th day of September, 1889, before tbe expiration of tbe time allowed by law for appeals from tbe judgments of a justice of tbe peace, Tbe Memphis & Charleston Railroad Company applied for and obtained from tbe judge of tbe Eighth Circuit a common-law writ of certiorari, returnable into tbe Circuit Court of Madison county, by which tbe records and proceedings before tbe justice were returned into that court, where, on motion of appellee, tbe writ of certiorari was dismissed, and judgment for costs rendered against appellant and tbe sureties on tbe certiorari bond, and from that judgment this appeal is taken.

Neither tbe summons nor tbe complaint issued from tbe justice’s court purports to be against tbe Memphis & Charleston Railroad Company, tbe petitioner in tbe application for tbe writ of certiorari. Tbe constable’s return, showing that tbe summons was executed, must be referred to the person named in tbe summons, and tbe entry on tbe docket of tbe justice, showing a continuance of the case by tbe defendant, must be referred to tbe party sued. Whether that be determined by tbe summons or complaint before tbe justice, it is obvious that tbe Memphis <fc Charleston Railroad Company is not tbe person sued. If we look to tbe summons, tbe person served is Thomas G. Morrow, and tbe words, “as agent of tbe Memphis & Charleston R. R,” are mere descriptio persona>. — -1 Black on Juclg., § 214. - If we look to tbe complaint, tbe defendant is tbe “M. & 0. R. R.”; and if we look to both summons and complaint, they do not together show a suit against tbe Memphis & Charleston Railroad Company. The judgment by default against tbe “defendants” is not a judgment against tbe Memphis & Charleston Railroad Comjxmy, tbe petitioner in tbe application for tbe writ of certiorari.

If an execution should issue on tbe judgment from tbe justice’s court against Tbe Memphis & Charleston Railroad Company, it would be wholly unwarranted and void.-— Watson v. May, 6 Ala. 133; 1 Black on Judg., 218,219,220. This probably is not tbe ground on which tbe Circuit Court dismissed tbe certiorari, as tbe point is not referred to in tbe argument; but we infer tbe action of tbe Circuit Court rests on tbe ground that tbe petitioner bad an adequate remedy by appeal.

This case is to be distinguished from that class in which a judgment by default is rendered against a person or corporation sued by a wrong name, after service on tbe right person and a failure to plead tbe misnomer; in which class of cases it is held that the real defendant, notwithstanding tbe misnomer, will be concluded by tbe judgment, so long as be can be identified or connected therewith. — 1 Black on Judg., § 213. But it is essential to tbe conclusiveness of such a judgment that it should be made to appear, not only that tbe real person was sued, but that be was duly served with process, though under a mistaken name. — 1 Black on Judg., § 218, bottom page 256. Had it been made to appear in this case that Morrow, on whom service was made, was authorized to receive service for Tbe Memphis & Charleston Railroad Company, tbe case, perhaps, would come within tbe text above cited and tbe authorities therein referred to. For aught that appears from tbe record and proceedings of tbe magistrate’s court, neither tbe suit nor tbe judgment is against appellant, and consequently it is not injured thereby. Watson v. May, 6 Ala. 133. Appellant, however, by its petition, admits itself to be tbe person against whom tbe judgment was rendered (but without legal service), and, tbe case having been so treated by appellee also, we will proceed to consider it in that aspect.

To support a judgment by default against a corporation, it must appear of record that tbe party on whom service was made sustained such a relation to tbe corporation sued as to authorize him to receive service of process on behalf of the corporation. — tío. Ex. Co. v. Carroll, 42 Ala. 437; Oxford Iron Co. v. Spradley, Ib. 24; 1 Black on Judg., § 81,

“Certiorari, at common law, is an extraordinary legal remedy. It can only be invoked wlien there is a legal right, and no other legal remedy. When an appeal lies, certiorari is not the proper remedy.” The foregoing is a quotation from the opinion of Chief Justice Stone in the case of Ala. Gt. So. R. R. Co. v. Christian, 82 Ala. 307. But the appeal here referred to is clearly such an appeal as will be effectual to reach the defects complained of, or, in other words, it must afford an adequate remedy. This is manifest from what follows in the same Opinion, where it is said: “What we do decide is, that in cases where ample redress can be obtained on a trial de novo, and the right of appeal is unobstructed, the conditions are wanting which justify a resort to this severe remedy; a clear legal right, and no other-legal remedy.”

The remedy by appeal from the judgments of justices of the peace is afforded by section 3898 of the Code, and on such appeals the case must be tried “de novo according to equity and justice, without regard to any defect in the summons or other process, or proceedings, before the justice.” Code of 1886, § 3405. The effect of this statute is such that had the railroad company taken an appeal to the Circuit Court such an appeal would have operated as a waiver of all defects in the summons, process, and proceedings before the justice, and the defendant would have been compelled to litigate in the first instance in the higher and more expensive tribunal, without ever having had its day in the magistrate’s court. This would not be in harmony with the policy of the law, which creates magistrate’s courts for the speedy and inexpensive disposition of cases of minor importance, and would not be the ample redress necessary to be afforded by appeal in order to supply the place of the remedy by the common-law certiorari.

If this.was a case in which it appeared from the record and proceedings of the magistrate’s court that the justice acquired jurisdiction of defendant’s person in any manner, however irregular, we would be bound by the former decisions of this court to hold that the remedy by appeal was adequate, and that the common-law writ of certicwari would not lie; but to so hold in this case would in effect be to confer original jurisdiction on the Circuit Court in a case the law contemplates should originate in a magistrate’s court, because the effect of such an appeal would be to compel the party appealing to try in the Circuit Court a case to which lie had never been a party in the magistrate’s court. Such a result we think justifies the resort to tlie “severe remedy” of the common-law writ of certiorari, as it is characterized in the case of Ala. Gr. So. R. R. Co. v. Christian, supra. In that case this court held that the circuit judge did not err in refusing the writ; that the remedy by appeal was adequate, because the defendant could, on such appecd, raise the question of jurisdiction, in the Circuit Court. But in that case the defect in the proceedings before the magistrate’s court was want of jurisdiction of the subject-matter, which could not be waived by appeal or otherwise; while in the case before us the want of jurisdiction is of the person, which the defendant would, by virtue of the statute, waive by taking the benefit of an appeal to the Circuit Court.

The Circuit Court erred in dismissing the writ of certiorari, and its judgment is reversed and annulled. Judgment will be here rendered quashing the judgment in the magistrate’s court, as prayed in the petition filed in the Circuit Court by appellant.

Reversed and remanded.

Walkek. J. not sitting.  