The opinion
On Rehearing.
HARWOOD, Judge.
In his brief on application for rehearing in this case, counsel for petitioner strenuously argues for error in our original decision denying the rule nisi and peremptory writ. It is urged that certiorari may not be made to take the place of an appeal, and that the application made to the circuit court for a writ of certiorari to the intermediate civil court contained no proper ground for the issuance of the writ. Upon this premise counsel for petitioner reaches the conclusion that the order of the circuit judge granting'the petition for certiorari to the intermediate civil court was and is absolutely void and could be questioned at any time.
In our original opinion we cited, the case of Ayers v. Barbour, 19 Ala.App. 470 , 98 So. 34 , and that of Roddam v. Brown, 210 Ala. 109 , 77 So. 403 , as authority for the proposition that “statutory certiorari is nothing more or less than an appeal by indirection.” By this citation it was intended to point out the distinction between common-law certiorari and statutory certiorari, as the proceeding applicable to judgments of justice of the peace court is referred to in the decisions. Other cases taking account of this distinction might have been added, among them Washington v. Parker, 60 Ala. 447 ; Smith v. Atlanta Guano Co., 232 Ala. 586 , 31 So. 490 ; Max J. Winkler Brokerage Co. v. Courson, 160 Ala. 374 , 49 So. 341 . In Washington v. Parker, supra, it was said per Brickell, C. J.: “In practice, a certiorari and an appeal
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are not regarded as concurrent remedies for the revision or, rather, a trial de novo in the circuit court, of causes which have been decided by justices of the peace. A certiorari has been regarded as a remedy to which the party could resort, after by the lapse of time the right of appeal had been lost. It has been said by this court, the certiorari should not be awarded, unless the petition avers a good reason for the failure to appeal. * * * But if granted without such averment, the cause cannot be repudiated by the circuit court, or the court to which it is returnable. * * * The policy of the statutes is to favor a speedy trial of such causes on the merits, without regard to defects or irregularities in the proceedings before the justice, or a rigid scrutiny into the mode of their introduction into the higher court. The right to remove by certiorari is not by statute expressly confined to cases in which the right of appeal has been lost; and it would be in contravention of the well-defined policy to expedite the trial of such causes on the merits, to repudiate them, when introduced by certiorari, because it appears the right of appeal was existing.”
We do not find that the foregoing decision has been in anywise departed from, but to the contrary has been affirmed, by name or by principle, in subsequent decisions, among them those cited supra. The statute now appearing as section 478, Title 13 of the Code of 1940, is the same in substances as those extant at the time of the decisions hereinabove cited, with the exception that the limitation of six months in which to bring certiorari appears to have been added by the Code Committee of 1907. What is said above, in quotation from the case of Washington v. Parker, is adverse to the insistence that the order of the circuit court granting certiorari to the intermediate civil court was null and void. Such order not being of the class of "void judgments,” it was encumbent upon petitioner to move seasonably to quash the writ, as pointed out in our original decision herein-above.
The application for rehearing is due to be, and it is, overruled.
Rehearing overruled.