Ex parte Smith

• Decision Date: 12 May 1910
• Citation: 168 Ala. 179,52 So. 895
• Parties: EX PARTE SMITH.
• Court: Alabama Supreme Court

52 So. 895

168 Ala. 179

EX PARTE SMITH.

Supreme Court of Alabama

May 12, 1910

Rehearing Denied June 30, 1910.

Application by Alfred Smith for mandamus, the writ to be directed to Hon C. W. Ferguson, Judge of the Birmingham City Court. Mandamus denied.

Petition alleges that the petitioner entered suit in the city court of Birmingham against C. D. Smith & Co. for damages for personal injury; that on June 6, 1909, upon a jury trial, the cause resulted in a mistrial; that on the 9th day of June, 1909 motion was made to require plaintiff to give security for cost, and upon default to dismiss the cause; that on June 12 1909, an order was made dismissing the cause unless the petitioner within 90 days from that date gave security for cost; and that on the 9th day of October, 1909, your petitioner avers an order was made dismissing said cause without notice to petitioner or his attorney. The petition to set aside dismissal was filed January 20, 1909.

London & Fitts, for petitioner.

E. H. Dryer and Stallings & Drennen, for respondent.

ANDERSON J.

More than 30 days having expired from the rendition of the final judgment dismissing the plaintiff's case, when the motion to reinstate same was made, the trial court was powerless to grant said motion, under the practice act of the city court of Birmingham (Acts 1888-89, p. 992). Ex parte James, 125 Ala. 119, 28 So. 69; Ex parte Highland Ave. R. R., 105 Ala. 221, 17 So. 182; Ex parte Payne, 130 Ala. 189, 29 So. 622. It may be that the plaintiff proceeded under section 5372 of the Code of 1907 for a rehearing within four months; but whether he did or did not make out a case for a rehearing, under said statute, we need not decide, for, if the trial court erred in refusing to grant the motion, the plaintiff's remedy for reviewing the action of the court in refusing the said motion was by appeal, and not mandamus. O'Neal v. Kelly, 72 Ala. 559.

Neither is mandamus the proper remedy to review and revise the judgment of the trial court dismissing the plaintiff's case. It was a final judgment, and such a one as would support an appeal to this court. "To authorize the issue of the writ of mandamus, there must be a clear legal right and no other remedy. The writ lies to compel the execution of ministerial duties, in all proper cases. As to judicial functions, the rule is different. The writ will be awarded to compel courts to entertain jurisdiction and pronounce judgment in the premises. It will not be awarded to order or direct what judgment shall be rendered in any given case; nor can its powers be invoked to correct any error in the final judgment or decree of an inferior court. The reason for this latter rule is that there is an adequate remedy in appeal, which lies from all final judgments or decrees of courts of record." Ex parte Schmit, 62 Ala. 254, and cases cited; Ex parte Gilmer, 64 Ala. 235; Ex parte Merritt, 142 Ala. 115, 38 So. 183. The...