
    Smith v. Patton.
    
      Action of Assumpsit.
    
    1. Oertiorari; token it is properly dismissed. — Where, in a civil action brought in a justice of the peace court, judgment is rendered against the defendant, and such judgment is satisfied, paid and extinguished before the writ of certiorari is sued out, such payment and satisfaction of the judgment constitutes a waiver and abandonment of the defendant’s right to have the case tried de novo by the circuit court upon -the certiorari which is issued; and upon such facts being shown to the circuit court, it is proper for the court to dismiss the oertiorari on proper motion being made.
    2. Same; presumption on appeal in absence of bill of exceptions. Where, upon the return to the circuit court of a writ of certiorari, motion is made to dismiss the certiorari, and each ground of the motion presents a disputable issue of fact upon which there is joinder of issue, upon appeal from a judgment granting said motion and dismissing the certiorari, where the record contains no bill of exceptions, it will be presumed by the Supreme Court that there was sufficient evidence before the circuit court to authorize the finding of fact necessary to sustain the judgment of dismissal.
    Appeal from the Circuit Court of Jefferson.
    Tried before the Hon. A. A. Coleman.
    The fuels of the -cuse are sufficiently stated in the opinion.
    J. W. Bush, for appellant,
    cited Grantham v. Payne, 77 Ala. 584; Wriyht v. Hart, 92 Ala. 591; Wright v. Gray, 20 Ala. 363; Gasey v .Bryany, 1 S. & P. 51; Van Epps v. 8m ith, 21 Ala. 319.
    No counsel marked as appearing for appellee.
   TYSON, J.

The appellant was sued in a justice court, and a judgment was rendered against him. After the expiration of the time allowed within which an appeal could have been prosecuted to tbe circuit court, he sued out a statutory writ of certiorari. On motion bis certiorari, was dismissed, 'and this appeal is prosecuted from tbe judgment of tbe circuit court dismissing it.

Tbe second ground of tbe motion alleges that tbe judgment in the justice court was satisfied, paid and extinguished before the. writ of certiorari was sued out. If this allegation was true in point of fact, there was a waiver or abandonment by the defendant of bis right to have the case tried tic uoro by tbe circuit court upon bis certiorari, which is accorded tbe same effect and operated as an appeal by the statutes. — Code, §§ 481-488; 2 Ency. Pl. & Pr. 175 and notes; Hall v. Hrabrowski, 9 Ala. 278; Bradford v. Bush, 10 Ala. 274.

But aside from this, each ground of the motion presented a disputable issue of fact and there seems to have been a rejoinder of issue upon tbe motion.

Tbe record 'contains no bill of exceptions, and, therefore, tbe evidence upon which tbe lower court acted in granting the motion is not before, us. A Ye must presume, upon tbe state of tbe case as shown by the record, that there was sufficient evidence before the court to' warrant the finding of fact necessary to sustain the judgment of dismissal.

Affirmed.  