Foshee v. State

• Decision Date: 30 June 1923
• Docket Number: 5 Div. 846.
• Citation: 97 So. 565,210 Ala. 155
• Parties: FOSHEE, CLERK, v. STATE EX REL. MESSER.
• Court: Alabama Supreme Court

97 So. 565

210 Ala. 155

FOSHEE, CLERK, v. STATE EX REL. MESSER.

5 Div. 846.

Supreme Court of Alabama

June 30, 1923

Rehearing Denied Oct. 11, 1923.

Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.

Petition by the State of Alabama, on the relation of C. D. Messer, for writ of mandamus directed to M. D. Foshee, as Clerk of the Circuit Court of Chilton County. From a judgment granting the writ, respondent appeals. Affirmed.

Sayre Somerville, and Gardner, JJ., dissenting in part.

J. J Mayfield, of Montgomery, Reynolds & Reynolds, of Clanton, and O. D. Street, of Guntersville, for appellant.

Thos A. Curry, G. C. Walker, Victor J. Heard, and Lawrence F. Gerald, all of Clanton, and J. F. Thompson, of Birmingham, for appellee.

ANDERSON C.J.

As a general rule a writ of mandamus will not issue to review an exercise of judicial or quasi judicial discretion, and this rule applies to the approval of official bond. Payne v. Spragins, 207 Ala. 264, 92 So. 466; Mobile Co. v. Cleveland, 76 Ala. 321; Ex parte Harris, 52 Ala. 87, 23 Am. Rep. 559.

This rule, however, has an exception in this jurisdiction, for in some cases the writ of mandamus has been employed to correct errors of inferior tribunals, and to prevent a failure of justice where there is a clear right and there is an absence of any other adequate remedy, and it has also been employed to prevent an abuse of discretion, or to correct an arbitrary action outside of the exercise of a reasonable discretion. 26 Cyc. 189; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Dowe, 54 Ala. 258.

This respondent did not refuse to approve the security in question because of the insufficiency of the sureties, as the proof shows that it was ample, and, in fact, the respondent indicated that five of the signers were sufficient; so the only possible reason that may be inferred from the evidence is that he did not deem the security in proper form, or was not satisfied with the genuineness of some of the signatures. As to the former, he consulted counsel, and it nowhere appears that he was advised of its insufficiency as to form. In fact, it needed no advice of counsel to ascertain and determine this fact, as the statute only requires security for cost, and we do not see how the form presented could have been improved upon. Therefore, if this was the reason for the refusal, the same was capricious and arbitrary.

As to the other ground, and as stated in the original opinion, while the statute does not require an acknowledgment on the part of the sureties as to their signature, the respondent's desire for proof as to the genuineness of same was not unreasonable, and should have been furnished when the request was made, and was in part acquiesced in by relator's counsel, who agreed to do so.

Upon the former consideration of this case, however, we misapprehended the true state of the record on this point by concluding that the clerk demanded the acknowledgment of five of the securities in any event, and that relator's counsel agreed to comply therewith, furnished one, and in effect declined to furnish the other, and we here repeat that, if these were the true facts, the refusal of the respondent would not be revised by this court. In reaching this conclusion we were, perhaps, too much influenced by the testimony of Walker as to what the respondent said, and also labored under the impression that Gerald undertook, unconditionally, to furnish all five of the acknowledgments, and only furnished one-thus overlooking Gerald's version of the matter, especially on cross-examination, and which is not in serious conflict with the evidence of the respondent on this point, and only partially so by Walker's evidence. At any rate, even if there was a serious conflict, this case was tried without a jury, the evidence was ore tenus, and the conclusion of the trial court was like unto the verdict of a jury, and will not be disturbed, unless plainly contrary to the great weight of the evidence. Hackett v. Cash, 196 Ala. 403, 72 So. 52.

It was therefore open to the trial court to find that the respondent exacted these acknowledgments only in the event the respondent was advised that the bond was in proper form; that Gerald furnished only one at the time, because the party was going to leave on the next train, and did not then furnish the others because it was understood that respondent was to inform him if he approved the form, and whether or not he would require said acknowledgments.

Gerald testified:

"I said to Mr. Foshee that day that if he required it, if the form of the bond proves satisfactory, I would furnish him a certificate or other evidence of these men signing it; that was the condition he made, *** and at the time he picked out those five men, and said that he was satisfied of the sufficiency of those five men on the bond. *** He never informed me that the bond wasn't in form. *** When I left, it was agreed we would have those men come to the clerk's office and admit or acknowledge that they signed that bond, provided the clerk required it, as stated. If the form was approved, he was to advise us then definitely of the conditions he wanted."

It therefore appears from one theory of the evidence, which was accepted, in effect, by the trial court, that the respondent would require proof of these signatures only in the event the form was sufficient, and as to which he would notify counsel before final action. It also appears that he declined to approve the security without notifying counsel as to the form, or that he desired proof of the signatures, and before giving relator's counsel an opportunity to furnish said proof. This being true, or being accepted by the trial court, the respondent's refusal was not in keeping with the understanding, was premature and arbitrary, and his action in this respect will be revised and corrected by the writ of mandamus, which was correctly awarded by the trial court.

We do not question the contention of appellant's counsel that it was...