Ex parte Louisville & N.R. Co., 6 Div. 123.

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
Citation211 Ala. 531,100 So. 843
PartiesEX PARTE LOUISVILLE & N. R. CO.
Decision Date29 May 1924
Docket Number6 Div. 123.

100 So. 843

211 Ala. 531

EX PARTE LOUISVILLE & N. R. CO.

6 Div. 123.

Supreme Court of Alabama

May 29, 1924


Rehearing Denied June 26, 1924.

Original petition by the Louisville & Nashville Railroad Company for writ of mandamus to the circuit court of Cullman County, to review the ruling of said court in sustaining demurrer to a motion to transfer an action in ejectment to the equity docket. Writ denied.

Eyster & Eyster, of Albany, and Brown & Griffith, of Cullman, for petitioner.

F. E. St. John, of Cullman, for respondent.

MILLER, J.

Ernest Hauk sued the Louisville & Nashville Railroad Company, a corporation, to recover possession of lots 1, 2, and 3 in block 1 in Osborn's addition to the town of Cullman, Ala., together with damages for the detention of it.

The defendant filed in the cause a written motion, which was afterwards amended, stating [100 So. 844] that it claimed an equitable right in a part of this land, and stated therein the substance of its equitable right and defense; and the motion as amended was verified by affidavit of a person who had knowledge of the facts alleged; and it prayed that the cause be transferred by the court to the equity docket. The legal sufficiency of this motion as amended was tested by demurrer filed by the plaintiff, and on the hearing the court sustained the demurrers. The defendant failed and declined to further amend the motion, and the court by order dismissed the motion and taxed the defendant with the cost thereof.

This is an application to this court for writ of mandamus to review the ruling of the trial court in sustaining the demurrers of plaintiff to the motion as amended of the defendant to have the cause transferred from the law to the equity docket of the court. Whenever an equitable right or defense appears to exist in a cause pending on the law side of the court, the decision of which would dispose of the cause, the defendant may assert such right or defense by a written motion filed in the cause, which shall state the substance of the equitable right or defense, and it must be verified by the affidavit of some person having knowledge of the facts. The act approved September 28, 1915, Gen. Acts 1915, p. 831.

Neither this act (Gen. Acts 1915, p. 831, § 2), nor any statute, gives the defendant the right of appeal from the judgment of the court sustaining demurrers to this motion to transfer the cause from the law to the equity side of the docket. Cornelius v. Moore, 208 Ala. 237, 94 So. 57. This ruling of the court may be reviewed by this court on appeal after final judgment, if adverse to the defendant, in the ejectment suit. Act approved September 18, 1915, Gen. Acts 1915, p. 598. But does this give the defendant an adequate remedy? The defendant has no remedy from this ruling by appeal or writ of error, except by appeal after final judgment, if adverse to it, in the ejectment suit, and if this would not be an adequate remedy, then mandamus would lie if the ruling was erroneous. Johnson v. Westinghouse, etc. Co., 209 Ala. 672, 96 So. 884; Ex parte Campbell, 130 Ala. 183, 30 So. 385; Cornelius v. Moore, 208 Ala. 237, 94 So. 57.

This court, in Ex parte Tower Mfg. Co., 103 Ala. 418, 15 So. 837, wrote:

"If an order, or judgment, or decree, is made or rendered, which is not the subject of revision by appeal, or other revisory remedy, and yet is erroneous, working injury to the party complaining, and there be no other legal remedy adequate to the correction of the error and the prevention of the injury,
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25 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...v. Hawkins Lumber Co., 109 Ala. 397, 19 So. 417; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3; [118 So. 798] Ex parte L. & N.R. Co., 211 Ala. 531, 100 So. The distinction between a motion in writing, made part of the pleading and the record proper, under section 9459, Code, and that fo......
  • Ex parte Jim Dandy Co., 6 Div. 771
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...granted if the action is not one of equitable cognizance because the remedy at law is adequate. . . ..' In Ex parte Louisville & N.R. Co., 211 Ala. 531, 100 So. 843, this court held that mandamus would lie to review an order denying transfer of a cause from law to equity. The reason for the......
  • Ex parte City of Bessemer, 6 Div. 649.
    • United States
    • Supreme Court of Alabama
    • June 6, 1940
    ...Holder v. Taylor, 233 Ala. 477, 172 So. 761; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. In Hendrix v. Southern Railway Co., 130 Ala. 205, 30 So. 596, 89 Am.St.Rep. 27, this court declared: "When the owner of land has ......
  • Louisville & N. R. Co. v. Solchenberger, 6 Div. 81
    • United States
    • Supreme Court of Alabama
    • May 19, 1960
    ...order on appeal from the final judgment because the statutory review does not afford an adequate remedy, Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. We will, therefore, on the petition for mandamus review the decree here complained On the Merits. The appellee brought an acti......
  • Request a trial to view additional results
25 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...v. Hawkins Lumber Co., 109 Ala. 397, 19 So. 417; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3; [118 So. 798] Ex parte L. & N.R. Co., 211 Ala. 531, 100 So. The distinction between a motion in writing, made part of the pleading and the record proper, under section 9459, Code, and that fo......
  • Ex parte Jim Dandy Co., 6 Div. 771
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...granted if the action is not one of equitable cognizance because the remedy at law is adequate. . . ..' In Ex parte Louisville & N.R. Co., 211 Ala. 531, 100 So. 843, this court held that mandamus would lie to review an order denying transfer of a cause from law to equity. The reason for the......
  • Ex parte City of Bessemer, 6 Div. 649.
    • United States
    • Supreme Court of Alabama
    • June 6, 1940
    ...Holder v. Taylor, 233 Ala. 477, 172 So. 761; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. In Hendrix v. Southern Railway Co., 130 Ala. 205, 30 So. 596, 89 Am.St.Rep. 27, this court declared: "When the owner of land has ......
  • Louisville & N. R. Co. v. Solchenberger, 6 Div. 81
    • United States
    • Supreme Court of Alabama
    • May 19, 1960
    ...order on appeal from the final judgment because the statutory review does not afford an adequate remedy, Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. We will, therefore, on the petition for mandamus review the decree here complained On the Merits. The appellee brought an acti......
  • Request a trial to view additional results

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