Ex parte Alabama State Bar Ass'n

• Decision Date: 28 January 1891
• Court: Alabama Supreme Court
• Parties: EX PARTE ALABAMA STATE BAR ASS'N.

8 So. 768

92 Ala. 113

EX PARTE ALABAMA STATE BAR ASS'N.

Supreme Court of Alabama

January 28, 1891

Application for mandamus to the judge of the tenth judicial circuit.

H C. Tompkins and John P. Tillman, for relator.

A A. Coleman, Brooks & Brooks, Semple & Little, Martin &amp McEachin, and G. W. Hewitt, for respondent.

McCLELLAN J.

The disbarment of attorneys is a subject-matter of which the circuit courts of this state have jurisdiction. The filing of the accusation shown by the record before us, by and in the name of the Alabama State Bar Association against Peyton G Bowman, the order thereon made requiring the accused to appear and answer the same, and the service of a copy of said order, together with a copy of the accusation, on said Bowman, gave the circuit court of Jefferson county, in which these proceedings were had, jurisdiction of his person, at least in the sense of establishing in some sort a lis pendens between him and the association. Whether the accusation was sufficient to put into exercise the jurisdiction of the court to the end of finally determining and adjudging between these parties the truth or falsity of its specifications; whether it was bad, in that it was not verified and did not proceed in the name of the state of Alabama, so that a final judgment of guilt and consequent disbarment would be coram non judice and void,-are questions which do not arise on this application for mandamus, and which we do not at all consider. Whatever may be the correct solution of those questions is wholly immaterial to the matter now in hand. In any event, as to them a proceeding was pending in the circuit court at the time the judge of that court refused to act in respect to it. There was then on the files and in the records of that court an action by the Alabama State Bar Association against Bowman, and to the disposition of that action the discharge of judicial functions by the judge was essential. The right of the relator to file the accusation at all was denied, and a question for the determination of the judge was thereby presented. The right of the relator to file an unsworn accusation was denied, and thereupon it devolved on the judge to decide whether verification was necessary. And however infirm the accusation may have been, however lacking in necessary parties or averment, however essential its verification, and however incurable by amendment may have been its defects, both the relator and the respondent had a right to demand that it be passed upon by the judge of the court in which it was pending, if he was competent to sit in the case; and without such adjudication by him, assuming his competency, the case could not be gotten rid of. Moreover, the circuit judge, before the objection to his competency was made and sustained, passed upon these questions, and ruled that the accusation was in all respects sufficient to invoke the jurisdiction of the court to a final determination of the issues of fact presented by it; and this adjudication, to the effect that the case was not only actually but properly pending in the court, cannot be expunged, even if it be erroneous, except by or consequent upon further judicial action of Judge HEAD, if he be competent. So that it is manifest, we think, that in any aspect the issuance of a peremptory mandamus would not be a vain and useless thing to do,-conceding the case to be otherwise a proper one for this remedy,-but would be to require necessary judicial action.

Is mandamus the proper remedy in cases like this? The point appears to be too well settled by the authorities to justify, or even admit, of much discussion. While recourse is never had to this writ to control judicial action, it is the usual, and generally the only adequate, process to compel the discharge of judicial functions. Its mandate is that the judge before whom a cause is pending shall proceed to hear and determine the same, but its use is not warranted to direct what particular judgment shall be rendered therein. High, Extr. Leg. Rem. §§ 147, 151; Foreman v. Marianna, 43 Ark. 324; Ex parte Mahone, 30 Ala. 49; Ex parte Schmidt, 62 Ala. 252; State v. Williams, 69 Ala. 311. The writ is not to be resorted to, of course, when the party invoking it has another adequate remedy. With respect to what is an adequate remedy, within the sense of this rule, the doctrine obtaining in this court is supposed by text-writers to be more favorable to the remedy by mandamus than that which generally prevails. However that may be, it seems assured by the former adjudications of the court that this remedy may be invoked whenever there is wrongful refusal of a judge to act, other remedies for such a wrong, if they exist at all, being considered inadequate to the end in view. In the case at bar, manifestly no appeal would lie from the refusal of the presiding judge to hear and determine the cause; and, conceding that the petitioner had a remedy by appeal from the final judgment rendered in the cause by the special judge, it can scarcely be contended, if the position of petitioner with respect to the competency of the judge of the circuit court be sound, that a remedy which involved a trial with a stranger on the bench, and could only arise upon the rendition of an absolutely void judgment, is one which is adequate to the end of ousting that stranger, and reinstating the de jure judge of the court. So that, pretermitting the consideration whether a final judgment with the alleged special judge on the bench would support an appeal at all,-nconceding, for argument, that it would, though void,-we are of opinion that the remedy by appeal from it is so inadequate as to authorize a resort to this summary proceeding. High, Extr. Leg. Rem. § 186, and citations.

The objection urged in argument that the writ should not be awarded in this instance because the circuit judge had judicially determined his own incompetency, and hence that to command him to proceed would be to control his judicial action, is wholly untenable. One of the original offices of the writ was to compel judicial officers who, from whatever cause or upon whatever considerations, wrongfully refused to act, to proceed with, hear, and determine the case in hand. Their discretion will not be controlled; and in the decision of every question...