CARR, Presiding Judge.
C. R. Snedden instituted suit against the Sorrowful Jones Trading Post, Inc. in the Intermediate Civil Court of Birmingham. The trial resulted in a judgment in favor of the plaintiff. The defendant filed a motion for a new trial. The motion was set for hearing and overruled.
Twenty-seven days after the ruling on the motion, the defendant presented to the Honorable Thomas E. Huey, one of the judges of the tenth judicial circuit of Alabama, a petition for a statutory writ of certiorari. In pertinent parts the petition alleges:
The judge granted the writ according to the prayer of the petition.
Nineteen days later the plaintiff in the Intermediate Civil Court filed a motion to quash the writ of certiorari. Judge Huey overruled the motion.
On February 23, 1953, C. R. Snedden presented in this court an original petition for mandamus to require or have us order the judge of the circuit court to set aside the following judgment:
Reference is here made to appeals from the Intermediate Civil Court of Birmingham.
There is no provision in the act relating to certiorari. This omission does not destroy the rights granted by the general laws pertaining to statutory certiorari.
In the early case of Casey v. Briant, 1 Stew. & P. 51, the court held in effect that the removal of a cause from the inferior court to a higher tribunal by certiorari is a substitute for an appeal, and, if the judge to whom the petition is addressed deems that the facts stated are sufficient to warrant the issuance of the writ, the appellate courts will not disturb this order.
This authority was cited and followed in Wright v. Gray, 20 Ala. 363. In the latter case the court had this to say:
This view has been consistently adopted in several subsequent cases. See, Van Eppes v. Smith, 21 Ala. 317; Washington v. Parker, 60 Ala. 447; Grantham v. Payne, 77 Ala. 584; Wright v. Hurt, 92 Ala. 591, 9 So. 386; Guscott v. Roden & Co., 112 Ala. 632, 21 So. 313; Smith v. Atlanta Guano Co., 132 Ala. 586, 31 So. 490.
The fairly recent case of Ex parte McDanal, 32 Ala.App. 445, 27 So.2d 504, presented a factual foundation almost identical with the one in the case at bar. We applied the doctrine of laches and dismissed the mandamus petition.
Judge Harwood authored the opinion for this court. At some length he discussed the rules applicable to statutory certiorari.
The logical effect of the conclusions we reached was that if the motion to quash the writ had been seasonably filed this court would not have disturbed the action of the circuit judge if he had overruled it.
It appears that the authorities do not support the position of the petitioner.
It is ordered, therefore, that the petition for writ of mandamus be denied.