Ex parte Watters

• Decision Date: 08 April 1913
• Citation: 180 Ala. 523,61 So. 904
• Parties: Ex parte WATTERS et al.
• Court: Alabama Supreme Court

61 So. 904

180 Ala. 523

Ex parte WATTERS et al.

Supreme Court of Alabama

April 8, 1913

Petition for writ of mandamus by J.P. Watters and others to review certain interlocutory rulings in an election contest. Writ denied and petition dismissed.

D.B Cobbs, of Mobile, for appellants.

Gregory L. & H.T. Smith, of Mobile, for appellee.

SOMERVILLE J.

The petitioner applies to this court for a writ of mandamus or certiorari for the purpose of reviewing certain interlocutory rulings and orders of the judge of the law and equity court of Mobile made in the progress of a proceeding in that court for the contest of an election for city commissioner of Mobile.

Specifically the petitioner seeks (1) to vacate several orders of the trial court granting the contestee's motions to dismiss certain parts or grounds of the statement of contest because of their legal insufficiency; (2) to set aside certain oral orders of the trial court refusing to allow petitioner to amend various portions of the statement of contest; and (3) to compel the allowance by the trial judge of the several amendments alleged to have been refused to petitioner.

The petition shows that the petitioner, as contestant in that proceeding, separately excepted to each of the several rulings complained of, and that the trial court "granted contestant's motions to enroll said written motions, and to make part of the record the oral motions, rulings thereon and exceptions thereto."

It is elementary law that mandamus "does not lie to control judicial action; it never issues to direct a judicial officer how to act, or what conclusion to reach upon a judicial question, but only to compel some action when a matter is presented for decision before an officer charged in that regard, and he refuses to hear and determine it." Ex parte Jones, 94 Ala. 33, 10 So. 429; Ramagnano v Crook, 85 Ala. 226, 3 So. 845; Dunbar v. Frazer, 78 Ala. 538. This general rule is, however, subject to well-settled exceptions. "If an order, or judgment, or decree, is made or rendered which is not the subject of revision by appeal, or other revisory remedy, and yet is erroneous, working injury to the party complaining, and there be no other legal remedy adequate to the correction of the error and the prevention of the injury, mandamus will be awarded; but the writ will not be granted, when full and adequate relief can be had by appeal, writ of error, or otherwise." Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Hays, 92 Ala. 120, 9 So. 156.

In the revision and correction of erroneous interlocutory action in inferior courts, the lines of limitation upon the use of this remedy have been rather loosely drawn by this court; and the adequacy of the remedy by appeal for the prevention of undue injury, rather than the availability merely of appeal, seems to be the prevailing test. First Nat. Bank v. Chevey, 120 Ala. 117, 121, 23 So. 733.

Where the right sought to be enforced is a clear, legal right, the allowance of which is a matter of peremptory duty and not of judicial discretion, there can be but little of doubt or difficulty in determining the propriety of the remedy by mandamus. On the other hand, where the right claimed necessarily invokes and exercises the judgment of the court upon the merit of the claim or issue as presented for action, it is evident that the propriety of the writ must be determined for each case upon its own peculiar merit.

On the principle above stated it is settled by precedent in this state that the erroneous refusal of the trial court to allow an amendment to the complaint may be corrected by mandamus. Ex parte Sullivan, 106 Ala. 80, 17 So. 387. But not the erroneous allowance of an amendment. Ex parte S. & N.A.R.R Co., 65 Ala. 599. The basis for this distinction, if there be any, must be found in...