Ex parte Barger

• Decision Date: 22 December 1942
• Docket Number: 6 Div. 90.
• Parties: Ex parte BARGER
• Court: Alabama Supreme Court

11 So.2d 359

243 Ala. 627

Ex parte BARGER

6 Div. 90.

Supreme Court of Alabama

December 22, 1942

Rehearing Denied Jan. 28, 1943.

Petition for mandamus.

Walter S. Smith, of Birmingham, for petitioner.

C.H Peay, of Birmingham, for respondent.

GARDNER Chief Justice.

This is an original petition in this Court seeking the issuance of a mandamus writ against the Judge of the Intermediate Civil Court of Birmingham for the purpose of reviewing a ruling in that court sustaining demurrer to petitioner's plea in abatement filed by him as defendant in a cause pending in said court.

This Intermediate Court was established by local act in 1935. Local Acts, 1935, p. 219. The jurisdiction as to amount is limited to three hundred dollars, and appeal authorized to be taken to the Circuit Court of the County. § 8, Local Acts supra. Likewise certiorari. § 21.

With certain well defined exceptions the jurisdiction of this Court, under § 140, Constitution, 1901, is appellate only and many of our cases have discussed this jurisdictional question. Some of them are referred to in Ex parte Pearson, 76 Ala. 521, where it was observed:

"In Ex parte Russell, 29 Ala. 717, which is the leading case, it was held, that this court will not, in the first instance, award a prohibition to the Probate Court, and that application must be first made to the Circuit Court. It was said: 'The Circuit Court of Sumter is invested with authority to exercise a general superintendence over all inferior jurisdictions "in that county; and may, therefore, issue the writ of prohibition, if the petitioner shows that he is entitled to it. If that court, upon a proper application, refuses to interfere, or if it takes jurisdiction, and mistakes the law," it will then be sufficiently early for a resort to this court.' "

In the recent case of Ex parte Alabama Textile Products Corporation 242 Ala. 609, 7 So.2d 303, 306, 141 A.L.R. 87, this jurisdictional limitation is recognized and the several authorities are noted. Some of the members of the Court were of the opinion that under Ex parte Pearson, supra, and authorities therein noted there should be no exception recognized. But the view of the majority of the Court may be summarized by the following excerpt from the opinion: "But the rule observed elsewhere with a similar provision of the constitution seems to be that the higher court will not take jurisdiction where the application can be made to a lower...