Ex parte Bryant, 6 Div. 51

• Decision Date: 08 March 1955
• Docket Number: 6 Div. 51
• Citation: 78 So.2d 821,38 Ala.App. 127
• Parties: Ex parte Cleavern BRYANT.
• Court: Alabama Court of Appeals

Page 821

78 So.2d 821

38 Ala.App. 127

Ex parte Cleavern BRYANT.

6 Div. 51.

Court of Appeals of Alabama.

March 8, 1955.

Arthur D. Shores and Peter A. Hall, Birmingham, for petitioner.

Ling & Bains, Bessemer, for respondent.

HARWOOD, Judge.

Cleavern Bryant has filed in this court a petition for a writ of mandamus directed toward compelling the Honorable F. R. Mathews, as Judge of the Circuit Court of the Tenth Judicial Circuit, to issue a so-called statutory writ of certiorari to the Recorder's Court of the City of Bessemer in the case of City of Bessemer v. Cleavern Bryant.

The petition for mandamus sets forth that Bryant was on 10 September 1954 tried and convicted in the Recorder's Court for violation of an ordinance of the City of Bessemer, and a judgment entered for the fine imposed and the costs. The fine and costs were immediately paid 'under protest;' that the following day Bryant presented to the recorder an appeal bond which was wrongfully disapproved by the recorder on the ground that the petitioner had waived his right of appeal by payment of the judgment.

The petitioner further alleges that on 22 November 1954 Bryant presented to the respondent a petition for a writ of certiorari to the Recorder's Court, which petition was denied, the respondent endorsing thereon: 'November 22, 1954, certiorari denied on the ground judgment has been paid and discharged, F. R. Mathews, Judge.'

In his answer the respondent asserts that the appeal bond was denied for the reasons set forth by petitioner, and avers that the alleged bond was left with the secretary of the recorder on 17 September 1954 by Arthur D. Shores, a licensed attorney of this State; thereafter the recorder called the office of Arthur D. Shores and notified the secretary in Shores' office that the tendered bond could not be accepted as it did not comply with statutory requirements for an appeal bond. Sec. 587, Title 37, Code of Alabama 1940.

The answer further avers that the recorder was not authorized to accept the bond for the reason that Rule 5 of the Rules of the Circuit and Inferior Courts of this State, Code 1940, Tit. 7 Appendix, provides that: 'An attorney may be surety for costs, but shall not be bail for his client either in a civil or a criminal case.'

Respondent has also filed in support of his answer an affidavit executed by Honorable Jesse W. Davis, Recorder of the City of Bessemer. The affidavit is corroborative of the averments of the answer as to the refusal of the acceptance of the appeal bond.

Attached to Davis' affidavit as an exhibit is a photostat of the alleged appeal bond tendered. It is a printed form for an appeal bond from a judgment of the Recorder's Court of the City of Bessemer to the Circuit Court of Jefferson County. Only the name of Cleavern Bryant appears in the face of the bond, other than the signatures at the bottom. All other spaces are blank. At the bottom are the signatures of Cleavern Bryant and Arthur D. Shores. Another signature, rather illegible and apparently scratched through, also appears.

The respondent in his answer admits refusing the petition for certiorari and endorsing the petition as averred. However the respondent further avers that 'the right of review afforded to the petitioner was by appeal and that as a condition precedent to a right of review it was necessary to give bond with good and sufficient sureties payable to the City to be approved by the Recorder or officer trying the case and unless such bond be given within five days from the date of judgment no appeal shall be allowed from such judgment and that on to-wit, November 22nd, 1954, more than five days had elapsed since the judgment was rendered on September 13th, 1954, and a good and sufficient bond as required by law had not been posted by petitioner nor was a reasonable excuse given for not posting the bond as required by law and the said fine having been paid by the petitioner your respondent avers and says that the statutory petition for Writ of Certiorari was properly denied by your respondent.

'Four: Your respondent for answer to paragraph seven avers and says that the issue of a Writ of Certiorari under the facts in this case required a finding of fact and as such is vested in the discretion of the Circuit Court and the denial of the Writ of Certiorari is not a ministerial duty for which a Writ of Mandamus will lie.'

While, as we have shown above, denial of the writ of certiorari was upon a stated ground, on consideration of the petition for mandamus we are not confined to that ground. Mandamus is an extraordinary legal remedy grantable only when petitioner shows a clear, specific legal right for enforcement of which there is no other adequate remedy. Ex parte McDanal, 32 Ala.App. 445, 27 So.2d 504, certiorari denied 248 Ala. 273, 27 So.2d 507. We therefore lay to one side the stated reason for the respondent's refusal to perform the act of granting petitioner's application for writ of certiorari, and proceed to a determination of the question whether or not petitioner had a clear, legal right to demand the granting of a writ of certiorari in any event.

The petitioner bases his asserted right upon Code 1940, Title 13, Section 184, along with Section 478, same title. Section 184 reads:

'Judges of circuit courts, and courts of like jurisdiction as the circuit courts, may grant writs of certiorari directed to recorders, justices of the peace, and judges of inferior courts in all cases where appeals lie from such recorder's courts, inferior courts, and justice courts to the circuit court and courts of like jurisdiction in like manner and with like effect as probate judges are now authorized to grant such writs to justices of the peace.' (Italics supplied.)

Section 478, Title 13, provides for the carrying of a cause from a justice's court to the circuit court, or court of like jurisdiction, by certiorari, within six months from rendition of the judgment.

It must be borne in mind that there is a distinction between common-law certiorari and statutory certiorari, as was pointed out in Ex parte McDanal, 32 Ala.App. 445, 27 So.2d 504, certiorari denied, 248 Ala. 273, 27 So.2d 507. In Pitard v. McDowell, 6 Ala.App. 236...