Davis v. McColloch

• Decision Date: 07 November 1914
• Docket Number: 732
• Citation: 191 Ala. 520,67 So. 701
• Parties: DAVIS v. McCOLLOCH et al.
• Court: Alabama Supreme Court

67 So. 701

191 Ala. 520

DAVIS v. McCOLLOCH et al.

No. 732

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Lawrence County; C.P. Almon, Judge.

Action by John W. Davis against R.N. McColloch and others. Judgment for defendants, and plaintiff appeals. Appeal dismissed.

O Kyle, of Decatur, for appellant.

Wert &amp Lynne, of Decatur, for appellees.

DE GRAFFENRIED, J.

In the case of Ex parte Tarlton, 2 Ala. 35, this court said:

In England, to which, in the absence of legislation, we look for rules to guide our practice and decisions, it is said to be well settled that error does not lie when the court whose judgment is complained of, acts in a summary manner, or in a new course different from the common law."

In the case of Stephenson et al. v. Mansony, 4 Ala. 317 this court held that an appeal does not lie from an order of a court striking a cause from its docket, and upon that subject said:

"The defendants are not, however, remediless. It is entirely competent for them to ask this court to compel a reinstatement of the cause by mandamus. This is a writ introduced it is said, to prevent a failure of justice, and ought to be used on all occasions where the law has established no specific remedy, and where in justice there ought to be one."

In the case of Ex parte Lowe, 20 Ala. 330, this court said, in speaking of the dismissal of a cause by a court:

"The court, therefore, erred in striking it off, and the writ of mandamus is the proper remedy to have it reinstated."

In the case of Ex parte State ex rel. Stow et al., 51 Ala. 69, this court said:

"There can be no doubt that mandamus is a proper remedy, under our practice, in such a case as this."

In the case of Terry & Bro. v. Hughes & Co., 93 Ala. 432, 8 So. 686, this court, in discussing an appeal from an order quashing a garnishment proceeding which had been sued out in aid of a pending suit and which was quashed while the original suit was still pending, said:

"The appeal is taken from the judgment quashing the garnishment. There is no statute authorizing an appeal from such an interlocutory order and no final judgment having been rendered, the appeal must be dismissed."

In the case of Ex parte Hendree et al., 49 Ala. 360, this court held that when a cause is dismissed from the docket of a court and a final judgment is rendered therein against one of the parties for the costs, then that an appeal will lie from such judgment, and that mandamus is not an appropriate remedy.

In the case of Ex parte Abrams, 48 Ala. 151, mandamus was held to be the proper remedy to require the reinstatement of a cause which has been improperly stricken from the docket of a court.

In the case of Ex parte Merritt, 142 Ala. 115, 38 So. 183, it was held that mandamus would not lie from the order of a chancellor dismissing a bill for want of equity, and on other grounds, "when the matter complained of can be revised on appeal, either under the statute in regard to interlocutory decrees, or from the final decree in ...