Ex parte Merritt

• Decision Date: 10 January 1905
• Parties: EX PARTE MERRITT.
• Court: Alabama Supreme Court

38 So. 183

142 Ala. 115

EX PARTE MERRITT.

Supreme Court of Alabama

January 10, 1905

Petition by Fisher H. Merritt, as administrator, etc., for a writ of mandamus to the judge of the city court of Montgomery. Denied.

Gunter & Gunter, for petitioner.

Whitson & Dryer, J. M. Falkner, and George W. Jones, for defendants.

SIMPSON J.

It appears from the record that the petitioner, Fisher H Merritt, filed a bill in the city court of Montgomery sitting in equity, against the Alabama Pyrites Company Percival H. Smith, and O. A. Smith, in connection with other defendants; that said parties filed in said court a motion to dismiss said bill as to them on the grounds therein stated that upon the hearing of said motion a decree was rendered to the effect that said bill, so far as it sought relief against said parties, was without equity, and "that the same do stand dismissed, at the cost of complainant." The petitioner prays for a writ of mandamus "ordering the vacation of said order of dismissal and the restoration of said defendants as parties to said petitioner's bill." The writ of mandamus is a remedial writ, granted where there is a specific legal right, and there is no other legal remedy which is adequate for the enforcement of the right. In its application to judges and judicial proceedings while cases sometimes touch so closely on the border line as to render it difficult to harmonize them all on a clear line of principle, yet there is a great uniformity in stating what that principle is, to wit, that the sole office of the writ is to force the judge to act, and not to direct him to render a particular judgment. It can compel him to hear and decide a controversy which is within his jurisdiction, but it cannot direct or control the exercise of his judicial discretion. It is not its office to correct errors. 14 Am. & Eng. Ency. Law (2d Ed.) p. 113; Ex parte Jones, 1 Ala. 15; State of Ala ex rel. Pinney v. Williams, 69 Ala. 311, 316; Ex parte The City Council of Montgomery, 24 Ala. 98; Ex parte Elston, 25 Ala. 72; Ex parte Parker, 120 U.S. 737, 743, 7 S.Ct. 767, 30 L.Ed. 818; Lamar v. Commissioners' Court, 21 Ala. 772, 778; Appling, Judge of Probate, v. Bailey, Assignee, 44 Ala. 333. It has been allowed in cases where a nonresident, under the old statute, failed to give security for costs, to force the dismissal of a case, because this was an absolute right, given by statute, and there was no remedy by appeal. Ex parte Cole, 28 Ala. 50; First National Bank of Anniston v. Cheney, 120 Ala. 117, 23 So. 733. In the last-cited case Chief Justice Brickell states that, as a general rule, "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," and goes on to show that these cases have been made an exception to the general rule, because the defendant had no adequate remedy, if he is forced to litigate with a nonresident without the indemnity against costs which the statute guaranties to him as absolute right. It has been granted where a case had been, without authority of law, stricken from the docket, in order to reinstate the same. Ex parte State ex rel. Stow, 51 Ala. 69. Also where a court, under an unconstitutional ordinance, set aside a judgment rendered at a previous term. Lawson v. Moore, 44 Ala. 275. Also where a court, without authority of law, at a subsequent term, set aside and vacated a final decree rendered at a previous term for the purpose of reinstating the same, as the court had no jurisdiction or control over the decree after the expiration of the term at which it was rendered. Ex parte Cresswell, 60 Ala. 378; Cochran v. Miller, 74 Ala. 50. Also to reinstate a case which was improperly allowed to abate after the death of the plaintiff, because the heirs or personal representatives had a specific right to be made parties and prosecute the suit, and...