Ex parte Jackson, 8 Div. 676

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 103 So. 558,212 Ala. 496
• Parties: Ex parte JACKSON.
• Docket Number: 8 Div. 676
• Decision Date: 19 March 1925

103 So. 558

212 Ala. 496

Ex parte JACKSON.

8 Div. 676

Supreme Court of Alabama

March 19, 1925

Petition of L.L. Jackson for mandamus to Hon. Charles P. Almon, as Judge of the Eleventh Judicial Circuit, requiring the annulment of a decree confirming report of the register fixing alimony pendente lite in a cause by Kate Furr Jackson against L.L. Jackson. Writ denied. [103 So. 559]

Travis Williams and William L. Chenault, both of Russellville, for petitioner.

Key & Key, of Russellville, for respondent.

THOMAS, J.

The petition is for mandamus directed to the judge of the Eleventh judicial circuit. The controversy was first sought to be presented to this court by appeal from an interlocutory decree allowing alimony and counsel fees pendente lite. Jackson v. Jackson, 211 Ala. 277, 100 So. 332.

The attorneys for the petitioner say:

"The undersigned attorneys most respectfully refer the court to the briefs on file in this cause when the same was before the court on appeal as Eighth Division, No. 624, L.L Jackson, Appellant, v. Kate Furr Jackson, Appellee. In the petition for mandamus the transcript in said cause is incorporated and made a part of the petition. The transcript of the entire proceedings being in the Supreme Court and especially referred to and incorporated in the petition, the authentic record will be before the court." Citing Brady v. Brady, 144 Ala. 414, 39 So. 237

This is also the effect of averments contained in the petition for mandamus. It is further averred in the petition that the circuit court "was without jurisdiction to render" the decree; that the "jurisdiction of the juvenile court was original and exclusive, and therefore a bar to the recovery in the equity court."

The respondent moves the court to quash the proceedings against him, and demurs thereto on grounds that the writ is not in the alternative, giving the right of compliance with the "demands in the petition at any time before the return day thereof"--to either "vacate his order, or to appear and show cause why it should not be vacated"; that he is not in "default in this cause" until he has been invoked or given "the opportunity to vacate his order allowing alimony"; and he is not shown to have "refused to do what the petition asks" this court to "make this respondent do."

It has been declared in this jurisdiction that mandamus will not be granted for the mere purpose of a review. Southern Ry. Co. v. Walker, 132 Ala. 62, 31 So. 487; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Johnson v. Westinghouse, etc., Co., 209 Ala. 672, 96 So. 884; Ex parte Seals Piano Co., 190 Ala. 641, 67 So. 240; Ex parte Smith, 168 Ala. 179, 52 So. 895; Ex parte McKissack, 107 Ala. 493, 18 So. 140; Ex parte Hayes, 92 Ala. 120, 9 So. 156; State ex rel. Pinney v. Williams, 69 Ala. 311; Ex parte S. & N.A.R. Co., 65 Ala. 599; Ex parte Grant & O'Barr, 53 Ala. 16; Ex parte Garlington, 26 Ala. 170; Ex parte Rowland, 26 Ala. 133; Ex parte Small, 25 Ala. 74; Ex parte Elston, 25 Ala. 72; State v. Bowen, 6 Ala. 511. See Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Garland, 42 Ala. 559. Early authorities to the effect that the writ is employed to prevent a failure of justice, or irreparable injury, when there is a clear legal right and an absence of any other adequate remedy, are Ex parte Lawrence, 34 Ala. 446; In re State ex rel. Nabor's Heirs, 7 Ala. 459; Ex parte Jones, 1 Ala. 15. This is the present rule. Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Goodwin, Judge, v. McConnell, 187 Ala. 431, 65 So. 788; Ex parte Bradshaw, 174 Ala. 243, 250, 57 So. 16; Ex parte Watters, 180 Ala. 523, 61 So. 904; First Nat. Bank v. Cheney, 120 Ala. 117, 23 So. 733; Ex parte Morgan, 30 Ala. 51; Ex parte Robbins, 29 Ala. 71; Ex parte Cole, 28 Ala. 50; Ex parte Barnes, 84 Ala. 540, 4 So. 769; Ex parte Haralson & Co., 5 Ala. 543; Ex parte King, 27 Ala. 387; Etheridge v. Hall, 7 Port. 47. Illustrations of the rule are Reynolds v. Crook, 95 Ala. 570, 11 So. 412, where there was no party who could prosecute the appeal; In re State ex rel. Nabor's Heirs, 7 Ala. 459, the action was erroneously abated; Johnson v. Glasscock, 2 Ala. 519, refusal of inferior court to proceed according to superior mandate; Ex parte King, 27 Ala. 387, a case of peculiar and pressing necessity for alimony pendente lite. In each of these cases mandamus was held the remedy.

In a case where mandamus lies, the general rule is that--

"In order to entitle a party to the writ of mandamus he must show that he has a clear legal right to demand the performance of a [103 So. 560] specific duty. In other words, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required. 19 Am. & Eng.Ency.Law (2d Ed.), p. 725, and note 4." Minchener v. Carroll, Treasurer, 135 Ala. 409 413, 33 So. 168, 169; Armstrong v. O'Neal, Governor, 176 Ala. 611, 58 So. 268.

It is further declared in this jurisdiction that in a proceeding for the alternative writ of mandamus a respondent may comply or question the sufficiency in law of the petitioner, or, by demurrer or motion to quash, question the same by plea or answer. When he elects to comply he may answer excusing by the averment of a specific compliance "following the mandatory clause of the writ, and stating his performance of the duty as by the writ commanded." State ex rel. Pinney...