Ex parte Boynton
Supreme Court of Alabama
1. Certiorari; when proper remedy. — Certiorari is a proper remedy to remove, for revision, a cause from the probate to the appellate court, where the order, decree, or proceeding, complained of, is claimed to be void. 2. Same; what should he done in primary court before applying for.- — Amotion to set aside the void action ought, however, to be first made in the primary court. 3. Same; when resort may he had directly to supreme court. — If such action occurs in a court from…
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1. Certiorari; when proper remedy. — Certiorari is a proper remedy to remove, for revision, a cause from the probate to the appellate court, where the order, decree, or proceeding, complained of, is claimed to be void. 2. Same; what should he done in primary court before applying for.- — Amotion to set aside the void action ought, however, to be first made in the primary court. 3. Same; when resort may he had directly to supreme court. — If such action occurs in a court from which an appeal may be taken to this court, or before a judge or court equal in authority and jurisdiction to any other…
1Dissent
PECK, O. J.,
(dissenting.) — During the recent vacation, on the application and petition of Wm. N. Boynton, to one of the judges of this court, a writ of certiorari was ordered to be issued by the clerk of this court, directed to the probate court of the county of Dallas, commanding the judge of said probate court to send, certified, to this court, a complete transcript of certain proceedings said to have been had in said probate court. *
Upon looking into said petition, it is seen that these proceedings consist of an order of said court removing said petitioner, as executor of the last will…
2Cases cited6 opinions
- Cawthorne v. WeisingerSupreme Court of Alabama · 1844
- John v. StateSupreme Court of Alabama · 1840
- Ex parte RussellSupreme Court of Alabama · 1857
- Field v. WalkerSupreme Court of Alabama · 1849
- Fowler v. TrewhitSupreme Court of Alabama · 1846
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