Ex parte State ex rel. Denson
| Decision Date | 25 April 1946 |
| Docket Number | 6 Div. 431. |
| Citation | 248 Ala. 161,26 So.2d 563 |
| Parties | Ex parte STATE ex rel. DENSON. |
| Court | Alabama Supreme Court |
Rehearing Denied June 27, 1946.
Paine Denson, of Birmingham, for relator.
Benners Burr, Stokely & McKamy, of Birmingham, for respondent.
The relator seeks a writ of mandamus to be directed to Honorable Whit Windham, Judge of the Tenth Judicial Circuit, requiring him to take cognizance of and rule on a petition for writ of mandamus filed as an alternative method of review after dismissal of the appeal in the circuit court.
A brief statement of the case is necessary. The Board of Trustees of the University of Alabama, in accordance with the provisions of Code 1940, Title 19, § 1 et seq., sought to condemn certain parcels of land belonging to relator. On March 29 1945, the application to condemn was granted by the probate court and the judge thereof appointed the commissioners required by the statute, § 11. From this interlocutory order relator undertook two unauthorized appeals, one to the circuit court of the county and one (with petition for alternative review by mandamus) to the Supreme Court. Disposition of the case in the Supreme Court by dismissal of the proceedings is reported in Denson v. Board of Trustees of the University of Alabama, Ala., 23 So.2d 714.
The instant case relates to the proceedings on appeal to the circuit court from the same preliminary order, which appeal was dismissed out of the circuit court October 12, 1945, as being unauthorized and prematurely taken. The relator contends that the appeal was accompanied by a petition for alternative writ of mandamus and that the circuit judge (respondent) should have taken cognizance of the alleged petition and acted on it.
The record proper does not substantiate this contention and the answer of the respondent judge specifically denies that this was the status of the proceedings. No document of record in the circuit court pertaining to mandamus was ever before him prior to the dismissal of the appeal nor until relator filed his motion to set aside the order of dismissal. The petition for mandamus was attached to this motion and this is the first record mention of it in said court.
Respondent asserts that not being called upon to rule on the petition thus appended to the motion to reinstate the appeal, he regarded it as merely supportive of the motion, and no more but that, had a ruling been invited, it would have been inappropriate since the petition came too late and was not an alternative method of securing relief under the motion to vacate the order dismissing the appeal, because the motion sought a correction of his own order and, inconsistently, the attached paper dealing with mandamus sought directory relief in another (probate) court.
In here determining whether mandamus will be awarded, it should be noted that the recitals in the answer of the Judge to a rule nisi of the occurrences before him in open court, not otherwise shown of record, are taken on review as presumptively true and the relator must overcome this presumption by satisfactory countervailing evidence. Ex parte Waldrop, 228 Ala. 38, 152 So. 44.
After a full and studious consideration, we are persuaded that the facts presented fail to show a clear legal right in relator to have this court coerce the official action sought. A fair construction of the record on the other hand leads us to conclude in favor of the answer of the respondent and to affirm his action as correct.
There are two sound reasons for this conclusion, whether the mandamus petition be regarded as alternative of the appeal or original.
First as indicated, it rather conclusively appears that the petition was never properly before the court for consideration until after dismissal of the cause, and was coupled with the motion to set aside the dismissal and designated 'Alternative Petition for Writ of Mandamus.' Without deciding whether this kind of review in the circuit court is permissible (See Ex parte Green, 221 Ala. 298...
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