Ex parte Jones

• Decision Date: 22 May 1902
• Citation: 133 Ala. 212,32 So. 643
• Parties: EX PARTE JONES. [1]
• Court: Alabama Supreme Court

32 So. 643

133 Ala. 212

EX PARTE JONES. ^[1]

Supreme Court of Alabama

May 22, 1902

Mandamus by Winston Jones to compel the chancellor of the chancery court of Marengo county to vacate an order made by him setting aside an order dismissing a bill in equity brought by petitioner. Writ denied.

Pettus Jeffries & Partridge, for petitioner.

Wm Cuninghame, for respondent.

DOWDELL J.

This is a petition for a mandamus to compel the chancellor to vacate an order made by him in the cause of Winston Jones v. L. D Hardy, pending in the chancery court of Marengo county, in which the chancellor, on the application of Hardy, set aside and annulled an order, made by the register of said court in vacation, dismissing the complainant's bill, on the motion of the complainant, Winston Jones.

The facts, as stated in the petition, show that the petitioner, Winston Jones, filed his bill in the chancery court of Marengo county against L. D. Hardy and others, seeking a discovery and an accounting. Demurrers were interposed by the several defendants, which were sustained as to all of the defendants except the defendant Hardy, and were overruled as to him. This decree on the demurrers was affirmed on appeal to this court. Jones v. Hardy, 127 Ala. 221, 28 So. 564. The defendant, Hardy, also filed an answer, which was made a cross bill. In his answer, after admitting certain averments of the bill, and denying others, he claimed a set-off against the demand of the complainant, which was germane to, and arose out of, the matters alleged in the bill.

The defense of set-off pleaded in the answer, and upon which affirmative relief is sought by way of cross-bill, is purely legal, as contradistinguished from equitable. It is matter as to which the cross-complainant has a complete and adequate remedy at law. And while it is proper subject for a cross bill, where affirmative relief is prayed, it is not an independent equity, or matter of purely equitable cognizance, such as would support an original bill in the first instance. In such a case, the dismissal of the original bill carries with it the cross bill. Abels v. Insurance Co., 92 Ala. 382, 9 So. 423; Wilkinson v. Roper, 74 Ala. 140.

The order of the chancellor vacating the order of dismissal made by the register in vacation, and restoring the cause to the docket, was purely interlocutory, and from it no appeal would lie. Not being an interlocutory decree, from which the statute authorizes an appeal, the only remedy left to the complainant is by mandamus. It is true that ordinarily it is not the office of this writ to review and revise judicial action, but generally to compel such action; yet, as has been decided by this court, the writ will lie to correct the erroneous ruling of a court where injury results, and there exists no right of appeal or other adequate means of redress. Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Hayes, 92 Ala. 120, 9 So. 156.

To determine whether the ruling of the court be erroneous, and such as entitles the petitioner to this remedy, of necessity involves a consideration and review of the action of the court complained of in the petition. And if it be concluded upon such review and consideration that there is no error the writ, as a matter of course, would be denied. The complainant had his bill dismissed, on application to the register in vacation, under the provisions of section 703 of the Code, which reads as follows: "Before an answer or cross bill is filed, the complainant may, on application to the register in vacation, dismiss the suit. On such application, the register must enter on the minutes an order of dismissal; and may issue execution against the complainant for all costs which have accrued. After answer or cross bill filed, the complainant may, on application to the register in vacation, dismiss the suit; and the register must enter an order of dismissal on the minutes. But the defendant, at the next succeeding term of the court, may show cause against the dismissal, and procure a vacation of the order. If cause is not shown at the next succeeding term, the order is final; and...