Ex parte Edwards

• Decision Date: 17 March 1925
• Docket Number: 6 Div. 639
• Citation: Ex parte Edwards, 104 So. 53, 20 Ala.App. 567 (Ala. App. 1925)
• Parties: Ex parte EDWARDS.
• Court: Alabama Court of Appeals

104 So. 53

20 Ala.App. 567

Ex parte EDWARDS.

6 Div. 639

Court of Appeals of Alabama

March 17, 1925

Rehearing Denied April 14, 1925

Original petition by Jesse Edwards for mandamus to Hon. Richard V Evans, as judge of the Circuit Court of Jefferson County. Mandamus denied.

Charles W. Greer, of Birmingham, for petitioner.

Thomas J. Judge, K.E. Cooper, and Edgar Allen, all of Birmingham for respondent.

BRICKEN, P.J.

This is an original application to this court for a mandamus to Judge Richard V. Evans, judge of the circuit court of Jefferson county, commanding and compelling him to set aside an order made by him as judge of the circuit court, which order provided that the clerk should issue an execution against the defendant and sureties on his replevin bond in a detinue suit, unless the defendant filed a supersedeas bond within 15 days. The defendant had theretofore appealed in the detinue suit to this court, and had executed a supersedeas bond of $2,000, as provided by section 2874 of the Code of 1907 (section 6133 of the present Code), which operated to supersede the money judgment, which was the alternate value of the property sued for, and which the jury had fixed at $800, together with $100 for the detention of the property. The second bond ordered by the circuit court was intended to meet the second condition provided for in section 2874 of the Code of 1907 (section 6133 of the present Code).

The statute, after providing for the execution of the supersedeas bond in double the amount of the money judgment, provides that if the judgment is for the recovery of property or the possession thereof, and the appellant desires to supersede the execution of that part of the judgment or decree, he must also execute a bond, with good and sufficient sureties payable to the clerk or register "in such sum as the judge in writing prescribes."

It is evident that the authority and power to fix the amount of this second bond is vested in the trial judge. The vesting of this authority and power in the judge of necessity involves the exercise of discretion, which cannot, by the exercise of mandamus, be revised by any other court.

Mandamus is an extraordinary remedy. This extraordinary writ issues only to compel action when the matter is presented for decision before an officer, charged in that regard, and who refuses to hear and determine it; but it never issues to control judicial action or to direct a judicial officer how to act or what conclusion to reach. Ex parte Jones, 94 Ala. 34, 10 So. 429; Dunbar v Frazer, 78 Ala. 538. It never issues from a superior to an inferior court, except when the right is clear and there is no other remedy. Wilson v. Duncan, 114 Ala. 659, 21 So. 1017. It never lies to control or direct discretionary powers of lower courts. It is a conservative, and not a creative, remedy. Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 25 So. 44; Ex parte Woodruff, 123 Ala. 100, 26 So. 509.

It is not disputed that an execution could or should not issue pending the appeal, unless this second supersedeas bond was executed, or unless a bond had been executed, conditioned as the statute requires the bond in question to be conditioned; and, of course, it cannot be denied that the judge of the circuit court had the authority and power to fix the amount of the bond, and that he did so fix the amount of the bond.

The defendant's objection to the bond is on the ground that it is unreasonable; that the amount fixed by the trial or circuit judge was excessive; that it was not framed with a view of indemnifying against the losses which the statute contemplated. It is very true, as is contended by counsel for the petitioner in this case, that the discretion given judges in...