Ex parte Scudder-Gale Grocer Co.

• Decision Date: 31 January 1899
• Citation: 25 So. 44,120 Ala. 434
• Parties: EX PARTE SCUDDER-GALE GROCER CO. [1]
• Court: Alabama Supreme Court

25 So. 44

120 Ala. 434

EX PARTE SCUDDER-GALE GROCER CO. ^[1]

Supreme Court of Alabama

January 31, 1899

Application by the Scudder-Gale Grocer Company for mandamus to compel A A. Coleman, judge of the Tenth judicial circuit, to enter judgment by default in favor of petitioner in an action by it. Writ denied.

Sam Will John and W. K. Brown, for petitioner.

SHARPE J.

The application was made to this court on December 2, 1898, and seeks the issuance of a writ of mandamus to compel the judge of the Tenth judicial circuit, holding the circuit court for the county of Jefferson, to enter a judgment by default as of the 5th day of November, 1898, in an action of detinue pending in that court, wherein the petitioner was plaintiff upon the ground that, the defendant therein being in default the petitioner, on a day when, by the rules of that court such motions could be heard, moved the court to enter a judgment by default, which motion the court refused, and passed to a later day. The return of the circuit judge was submitted with this application. It shows, in effect, that he was inducted into office two days before the motion for judgment was made; that, as incident to a change of officers and an accumulation of business, an order was made by the court continuing many cases to another week of the term; that, when plaintiff's motion for judgment was made, the court was informed by the clerk "that there was no default docket made to be called on that day, and that there was a general impression by the bar that all cases had been passed, to be reset under the order made on Thursday"; and the court was also informed that petitioner's case would probably be litigated. Thereupon the court declined to entertain the motion at that time without consent of the opposite party; stating to plaintiff's attorney, as a reason therefor, the misunderstanding as to the call of such cases, together with the information that the case would probably be defended. The case was then continued to the next motion day, before which time pleas were filed in the cause.

The proper conduct and disposition of the business of nisi prius courts necessarily involves the exercise of some discretion by the court. The precise time at which a cause ready for trial should be entered upon, depending, as it frequently does, upon considerations of convenience, both public and private, can hardly be made the subject of unbending rules, so as to give to a party to a cause the absolute right to demand and require that his case, though ready for trial, shall be immediately entered upon and disposed of. Varying circumstances may arise, which cannot be foreseen, calling for the present use of discretion, which is in the power alone of the trial court. Since it is the only tribunal which can take immediate cognizance of the attending circumstances, the trial court is presumed to be the one most capable of determining the proper action in the given case. Therefore it is an established rule that, though the abuse or arbitrary and unjust use of discretion may be controlled, yet the discretion of the court to which it properly belongs, when reasonably exercised, is not to be supplanted by the judgment of another, though a superior, court; and that, therefore, mandamus will never be used to control such exercise of discretion, even though it may not be in accord with the judgment of the supreme court. High, Extr. Rem. §§ 154, 156; Ex parte City of Montgomery, 24 Ala. 98; Ex parte South & North Alabama R. Co., 44 Ala. 654; Ex parte Shaudies, 66 Ala. 134.

The answer to this petition is uncontroverted, and must be taken as true. Its statements and admissions of fact are those upon which petitioner submits his right to relief. High, Extr Rem. § 462. It appears therefrom that the action of the court complained of did not amount to a denial of petitioner's motion, but only to the making of an interlocutory order postponing and fixing the following Saturday for its hearing. As...