Ex parte Hartwell

• Decision Date: 04 May 1939
• Docket Number: 1 Div. 52.
• Citation: 188 So. 891,238 Ala. 62
• Parties: Ex parte HARTWELL.
• Court: Alabama Supreme Court

188 So. 891

238 Ala. 62

Ex parte HARTWELL.

1 Div. 52.

Supreme Court of Alabama

May 4, 1939

Rehearing Denied May 25, 1939.

Petition of Harry T. Hartwell for mandamus to J. Russell McElroy sitting as Judge of the Circuit court of Mobile County, and R.V. Taylor.

Writ denied.

Harsh Harsh & Hare, of Birmingham, and M.F. Dozier and Winston F Groom, both of Mobile, for petitioner.

Smith & Johnson, of Mobile, for respondents.

THOMAS Justice.

The facts in the case are simple. The petitioner, as an elector of the County of Mobile and a resident of the City of Mobile, filed a contest of the election of the respondent Taylor to the office of City Commissioner of the City of Mobile, under the statutes governing election contests--section 545 et seq., Code 1923.

After the trial had proceeded for months and the parties had closed their evidence in chief, the contestant moved the trial court for a dismissal of his contest without a ruling on the merits. This motion the court refused, upon objection by the contestee. Upon the petition for mandamus filed herein, this Court issued its rule nisi to the respondent, as the judge sitting in said cause, to show cause why the writ of mandamus should not issue, as prayed for in the petition; said Taylor, the contestee in the case below, being made a party to the petition. Each of the respondents has filed separate demurrer to the petition for mandamus.

The presiding judge and his counsel insist that the petition for writ of mandamus should be refused, because petitioner has an adequate remedy by appeal from the final judgment of the case, when rendered. Many cases from this and other jurisdictions are cited. Ex parte Rowland, 26 Ala. 133; Ex parte Elston, 25 Ala. 72; White v. Nance, 16 Ala. 345; Ex parte Wright, 225 Ala. 220, 142 So. 672; Johnson v. Westinghouse Church, Kerr & Co., 209 Ala. 672, 96 So. 884; Southern Ry. Co. v. Walker, 132 Ala. 62, 31 So. 487; Chicago & A.R. Co. v. Union Rolling Mill Co., 109 U.S. 702, 3 S.Ct. 594, 27 L.Ed. 1081; Ex parte Johnson, 25 Ark. 614.

It is further insisted that the instant petition shows that petitioner has not been injured by the action of the trial court in declining to grant the motion to dismiss the contest without a ruling on the merits, when all the evidence on direct and cross examination was before the court. Pearson v. Alverson, 160 Ala. 265, 49 So. 756; Black v. Pate, 130 Ala. 514, 30 So. 434; White v. Nance, supra.

The demurrer filed by each of the respondents raises the point that the action of the trial court in refusing to grant the motion to dismiss may be reviewed on appeal from the final judgment entered in the case. That is, the petitioner had an adequate remedy by appeal when the case was finally decided on the merits.

In White v. Nance, 16 Ala. 345, the case was that plaintiff during the trial moved the court to dismiss; motion was refused; the cause proceeded to a final judgment from which an appeal was taken and decided by this Court. The Court passed upon the refusal of the lower court to grant the motion to dismiss, and held that no injury resulted from the failure to dismiss, as the same result was the effect of final judgment rendered.

In the case of Ex parte Johnson, 25 Ark. 614, 615, the Supreme Court of Arkansas held: "A writ of mandamus will not lie to compel the circuit court to reverse its action, overruling a motion of a complainant to dismiss his bill of complaint."

The Court said: "But it is asserted, by petitioner's counsel, that the defendants' answer was in no sense a cross-bill and that it called for no relief or answer; and that, therefore, the complainant had control over his own pleadings, and had a right to be dismissed. This may be true, but it is not the province of this court, upon this application, to go back of the judgment of the court below, upon the motion, to ascertain whether there was an error or not in its determination of the motion. If it acted erroneously, the complainant had another remedy clearly pointed out by the law." [Italics supplied.]

In Ex parte Rowland, 26 Ala. 133, this Court denied a petition for mandamus to compel the chancellor to dismiss a cause on a motion, in pursuance of a written agreement between the parties to that effect. This Court entered a per curiam decision refusing the motion for the rule nisi and cited as authority therefor Ex parte Elston, 25 Ala. 72; Ex parte Small, 25 Ala. 74 (discharge on bail); Ex parte City Council of Montgomery, 24 Ala. 98 (dissolution of injunction on answer). The reason for this Court's refusing to control the action of the lower court where the matter complained of is revisable on appeal, where the petitioner has an adequate remedy by appeal, is well expressed in the case of Ex parte Elston, 25 Ala. 72. There a petition was filed for mandamus in the Supreme Court to compel the circuit court to vacate an order suppressing a deposition. The Court in that case said: "The motion cannot be granted. It is true, this court has a general superintendence and control over inferior tribunals; and it may be that the court committed an error in suppressing the depositions--a point which we do not now decide; yet we should be sorry if, at every step taken in a cause in the primary court, which a party supposes to be incorrect, an appeal would lie to this court to revise its action. Our primary courts would be embarrassed beyond endurance, and our own terms would, in a great measure, be consumed in the argument of points raised upon the preliminary action of the inferior courts. The office of a mandamus is too well settled in the case of Edward Henry Ex parte, at this term (24 Ala. 638) and Ex parte The City Council of Montgomery, 24 Ala. 98, to require further illustration. These cases show, that the case presented is not one which justifies the interposition of this court. The court below has not refused to act--has not repudiated its jurisdiction--but has, it is alleged, committed an error which is injurious to the petitioner. This error, if it be one, can be revised on appeal, when the cause shall have been finally disposed of; * * *."

The case of Ex parte City Council of Montgomery, 24 Ala. 98, is referred to in the Elston opinion. In that case, which has never been overruled, the Court said: "If every order of continuance, every refusal to grant new trials, and the numerous interlocutory orders which are made in causes, both at law and in equity, from their inception to their final termination, could each be made distinct subject-matter for an appeal to this court, at the hazard of a heavy bill of costs, this court would become an intolerable grievance, and there would be no end to the litigation to which a cause requiring a great number of such orders might be subjected."

These cases, from which we have quoted above, have not been departed from. In Ex parte Jackson, 212 Ala. 496, 103 So. 558, the early and recent authorities are collected which support the propositions that (1) mandamus will not be granted for the mere purpose of review; (2) mandamus is employed to prevent failure of justice or irreparable injury, when clear legal right exists and there is no other adequate remedy. Ex parte Wright, 225 Ala. 220, 142 So. 672; Southern Ry. Co. v. Walker & Minge et al., 132 Ala. 62, 31 So. 487; Johnson v. Westinghouse, Church, Kerr & Co., 209 Ala. 672, 96 So. 884.

In 4 A.L.R. 632, under the annotation "Inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court," the cases from this and other jurisdictions are collected. It is there said:

"In Ingram v. Alabama Power Co., 1917, 201 Ala. 13, 75 So. 304, the court said: 'It has been definitely settled by this court that the proper and appropriate practice is to appeal from orders, judgments, or decrees which deny or refuse applications for rehearing made under the four-months' statute, because such order or judgment is final, disposing of the application and the judgment sought to be set aside; but, if the application to set aside the judgment and grant a rehearing is erroneously made, the order is not final, because it does not dispose of the case, but restores it to the docket for a new trial. In such case there is no judgment to support an appeal, and hence errors (if such have intervened) could not be reviewed or corrected on appeal. This being true, the proper and appropriate practice and remedy are by mandamus to compel annulment of improper orders, and restoration of the judgment or decree erroneously set aside, thus preventing a rehearing or a new trial.'

"So, in First Nat. Bank v. Cheney, 1898, 120 Ala. 117, 23 So. 733, the court said: 'The case comes before the court, primarily, on an application for a mandamus to compel the judge of the city court of Anniston to enter an order dismissing a suit commenced in that court by A.D. Cheney against the First National Bank of Anniston, and to vacate an order which had been entered, overruling a motion for a dismissal. At the time of the commencement of the suit, Cheney was a nonresident of the state, and failed to give security for the costs of suit. If the neglect to give the security required the dismissal of the suit, mandamus is an appropriate remedy to compel it; though on appeal, after final judgment against the defendant, the refusal to dismiss, if properly presented, would be error available to reverse the judgment. As a general rule, it is true that mandamus will not be granted for the correction of an error arising in the progress of a suit, which can be revised on appeal after final judgment. Ex parte Elston, 1854, 25 Ala. 72. But the appeal must be an adequate remedy. It must be capable of protecting parties from the injury immediately resulting from the error of the

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