Ex parte Brooks
| Decision Date | 02 August 1956 |
| Docket Number | 5 Div. 634 |
| Parties | Ex parte Mazie C. BROOKS. |
| Court | Alabama Supreme Court |
Denson & Denson and Yetta G. Samford, Jr., Opelika, and Young & Hollis, Columbus, Ga., for petitioner.
L. J. Tyner, Opelika, for respondent.
In this case Carrie Morgan brought her suit against Mrs. Mazie C. Brooks (petitioner here) for damages claimed as a result of an automobile accident, wherein plaintiff alleges that she was riding as a passenger in an automobile on a public highway in Chambers County, Alabama, on towit, June 13, 1952, and that defendant negligently operated an automobile at that time and place and collided with the car in which the plaintiff was riding and as a proximate result thereof, plaintiff suffered personal injuries and damages. The complaint consists of three counts, the first two counts charging simple negligence and the last count charging wanton misconduct. The suit was filed in the Circuit Court of Chambers County on June 9, 1953.
The plaintiff then sought to get service on the defendant, a nonresident under the provisions of § 199, Title 7, Code of 1940. Copies of the complaint were sent to the Sheriff of Montgomery County, who made service thereof on the Secretary of State of Alabama on towit June 10, 1953, but no notice of such service and a copy of the summons and complaint were sent by the Secretary of State to the defendant at that time either by registered mail or in any other manner. Later on service was sought to be had by notice to the defendant by the Secretary of State on towit May 24, 1955. For reasons which will become apparent we see no reason at this time to state in any further detail the facts relating to the effort to give notice by the Secretary of State to the defendant.
The defendant, Mrs. Mazie C. Brooks, entered a special appearance in the cause and filed a plea in abatement attacking the service claimed to have been had on her through the Secretary of State of Alabama. To this plea Carrie Morgan demurred. The court sustained the demurrer and this petition for mandamus is filed here to require the lower court to vacate its order sustaining the demurrer to the plea in abatement. The case is submitted here on the petition for mandamus and the demurrer and answer of Judge Will O. Walton.
In the recent case of Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432, this court held in effect that if the matter complained of, including a ruling on a plea in abatement, can be ultimately presented to the appellate court through the medium of an appeal from final decree, mandamus will not ordinarily be granted for reasons set forth in the opinion, including the proposition that appellate courts will not hear causes in piece-meal. It is also pointed out that under our cases, mandamus will not be granted for the mere purpose of review. Accordingly, the writ in Brittain v. Jenkins, supra, was denied. See Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512; ...
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...113, 22 So.2d 510 (1945) ] supra (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the r......
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...Ala. 113, 22 So.2d 510 (1945) ] (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the re......