Echols v. Housing Authority of Auburn

• Decision Date: 30 November 1979
• Citation: 377 So.2d 952
• Parties: Connie ECHOLS v. HOUSING AUTHORITY OF AUBURN. Marie HOLIFIELD v. HOUSING AUTHORITY OF the CITY OF AUBURN. 78-421, 78-422.
• Court: Alabama Supreme Court

Page 952

377 So.2d 952

Connie ECHOLS v. HOUSING AUTHORITY OF AUBURN.

Marie HOLIFIELD v. HOUSING AUTHORITY OF the CITY OF AUBURN.

78-421, 78-422.

Supreme Court of Alabama.

Nov. 30, 1979.

David S. Yen and Peter H. Martin, Montgomery, for appellants.

C. Mike Benson of Haygood & Benson, Auburn, for appellee.

BEATTY, Justice.

These are appeals from the dismissal of amended petitions for writs of mandamus addressed to the District Court of Lee County. We affirm.

The appellants-defendants are tenants in a publicly subsidized apartment complex operated for low income tenants by the Housing Authority of the City of Auburn. During the period of their leases the tenants defaulted in the payment of rent. Ultimately the Authority initiated possessory actions under the provisions of Code of 1975, § 35-9-80, formerly Tit. 31, § 35, Alabama Code and popularly known as the "Sanderson Act." After a trial, the District Judge of Lee County entered judgment against the tenants and ordered execution to issue. No writ of restitution was issued, however. On the day after judgment was entered the tenants filed notices of appeal, demanding jury trials. These appeals did not comply with § 35-9-87(b) of the "Sanderson Act" which requires the filing of a supersedeas bond in the sum of twice the yearly value of the rent in order to prevent the issuance of a writ of restitution. The tenants did comply, however, with the provisions of Rule 62(dc)(5), ARCP and on that basis moved the district judge to stay execution of his judgment favoring the Authority. That court, in denying these motions, relied upon § 35-9-87(b). The tenants then moved for a waiver of the supersedeas bond requirement, alleging that such a requirement would violate the Constitution of 1901, § 11 (right to trial by jury) and their rights to equal protection under the Fourteenth Amendment. In the alternative the tenants offered appeal bonds in the amount of their accrued monthly rent. These motions were also denied, as were motions for new trials, whereupon the tenants filed their petitions for writs of mandamus, as amended, in the Circuit Court of Lee County requesting that the district judge be ordered to issue a stay of execution of the judgments. After a hearing on the petitions, the Authority's motions to dismiss were granted by the circuit court. These appeals followed.

It is well settled in this jurisdiction that mandamus will not lie when there is a remedy by appeal, and the writ cannot be used as a substitute for appeal. Finley v. Jenkins, 264 Ala. 536, 88 So.2d 329 (1956). Mandamus is an extraordinary legal remedy to be granted only when there is a clear, specific legal right shown for the enforcement of which there is no other adequate remedy. Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937); 14 Ala.Dig., Mandamus, k4(1).

The positions of the defendants spring from their argument that the supersedeas bond requirements of § 35-9-87(b) have been replaced by Rule 62(dc) (5), ARCP. From this position the defendants also assert their right to a jury trial under "Sanderson Act" proceedings, and contend that the two-year rent requirement under § 35-9-87(b) is an impediment to that right. In that connection, the defendants contend that they have a legal right to a jury trial...