Ex parte Tower Mfg. Co.

• Decision Date: 07 June 1894
• Citation: 15 So. 836,103 Ala. 415
• Court: Alabama Supreme Court
• Parties: EX PARTE TOWER MANUF'G CO. ET AL.

15 So. 836

103 Ala. 415

EX PARTE TOWER MANUF'G CO. ET AL.

Supreme Court of Alabama

June 7, 1894

The Tower Manufacturing Company et al. made application for a rule nisi directed to the judge of the city court requiring him to show cause why a peremptory mandamus should not issue commanding him to vacate an order requiring the clerk to issue a transcript and certify an appeal in suit of Tower Manufacturing Company et al. against C. A. Thompson. Motion granted.

J. J Willett and D. C. Blackwell, for petitioners.

Knox Bowie & Pelhom, for respondent.

BRICKELL C.J.

On the 10th day of March, 1894, the city court of Anniston rendered a personal decree against C. A. Thompson, a married woman, in favor of the movants, for the sum of $10,959.36, ordering the issuance of execution thereon. On the 19th day of March thereafter, Mrs. Thompson having made and filed with the clerk of the court the affidavit prescribed by the statute (Code, § 3629), claimed an appeal from the decree, without giving security for the costs of appeal, or bond, with sureties, to supersede its execution. The clerk refused to make a transcript of the record and certify the appeal. Thereupon she applied to the city court for an order requiring the clerk to make a transcript and certify the appeal, and for a suspension of the execution of the decree until the appeal was heard and determined. The court granted the application and made the order, and the movants, having given notice to the judge of the city court and to Mrs Thompson, now move for a rule nisi directed to the judge to show cause why a peremptory mandamus should not issue commanding him to vacate the order. The parties have appeared, and submitted arguments and briefs in support and in opposition to the motion.

1. It is suggested by the counsel opposing the motion that it ought to be overruled, because it is not accompanied by a petition or other like pleading, stating the facts on which the right to relief is based, verified by the oath of the movants. If the right to relief was dependent on matter not appearing of record, in whatever form the application was made, a verification of it by the oath of the applicant, or affidavit in support of it, making a prima facie case, would be essential. When the application is made to this court for the grant of the writ directed to an inferior court of record because of matters necessarily of record, an authenticated transcript of the record renders unnecessary the verification by the oath of the applicant, or other affidavits to support it. The authenticated record is the sole evidence upon which the court acts. A petition stating the facts upon which the right to relief is claimed would be more formal, and in correspondence with the mode prescribed by the statute, when a like application is made to the courts of original jurisdiction. Code, § 3158. The practice of applying by motion, entered here on the motion docket, of which notice is given to the parties in adverse interest, has prevailed too long now to be departed from, however informal it may seem. Ex parte Garland (opinion of Walker, C.J.) 42 Ala. 559.

2. The writ of mandamus, it may be, has been employed by this court more liberally as a remedy for the correction of the errors of inferior tribunals than would seem consistent with the principles of the common law. If this is true, it is in some degree attributable to the existence of peculiar statutory proceedings, in which errors may intervene, incapable of correction by appeal or other revisory remedy. In other cases, to prevent a failure of justice, or irreparable injury, when there was a clear legal right, and an absence of any other adequate remedy, there has been resort to mandamus. The recent cases of Ex parte Barnes, 84 Ala. 540, 4 So. 769, and Reynolds v. Crook, 95 Ala. 570, 11 So. 412, are illustrative. In the first case, in the course of a suit commenced by attachment, the goods on which a levy had been made were sold, and the proceeds of the sale were in the hands of the sheriff. A claim of exemption was interposed by the defendant, which was invalid, the attachment having been sued out to enforce the lien for the rent of a storehouse. Yet the circuit court sustained it, and made an order directing the sheriff to pay the proceeds of sale to the defendant. The order was erroneous, and was destructive of the lien for the payment of the rent. It was not a final judgment from which an appeal would lie, and the execution of which the plaintiff could suspend by the giving of a bond with sureties. To prevent a failure of justice and irreparable injury, a mandamus was awarded, compelling a vacation of the order, and the restoration of the parties to the condition in which they were when the error was committed. In the second case, in the course of a suit in equity for the final settlement of an administration, creditors had been notified to come in and make proof of their claims. A creditor appeared, filed and proved her claim, which was allowed. She having died, the proper...