Guaranty Funding Corp. v. Bolling

• Decision Date: 06 April 1972
• Docket Number: 1 Div. 693
• Citation: 260 So.2d 589,288 Ala. 319
• Parties: In re GUARANTY FUNDING CORPORATION v. Honorable William D. BOLLING, as Judge of the Thirteenth Judicial Circuit of Alabama. Ex parte Guaranty Funding Corporation.
• Court: Alabama Supreme Court

Page 589

260 So.2d 589

288 Ala. 319

In re GUARANTY FUNDING CORPORATION v. Honorable William D. BOLLING, as Judge of the Thirteenth Judicial Circuit of Alabama Ex parte Guaranty Funding Corporation.

1 Div. 693.

Supreme Court of Alabama.

April 6, 1972.

Jack W. Morgan, Mobile, for petitioner.

David L. Barnett, Engel & Smith, Mobile, Norman K. Brown, Bessemer, for respondent.

LAWSON, Justice.

This is a mandamus proceeding.

Guaranty Funding Corporation, a corporation, on June 29, 1971, filed in this court its petition for writ of mandamus to be issued to the Honorable William D. Bolling, as Judge of the Circuit Court of the Thirteenth Judicial Circuit of Alabama, Mobile County.

On August 16, 1971, this court made and entered the following order:

'Comes the petitioner, Guaranty Funding Corporation, a corporation, and presents its Petition for Writ of Mandamus to be directed to the Honorable William D. Bolling, as Judge of the 13th Judicial Circuit of Alabama, commanding him to vacate and set aside the decree entered by him on May 28, 1971 and to enter an order and judgment directing the writing up of a judgment in proper form overruling the petitioner's demurrers to the plaintiffs' Replication #2 in the case of Ben H. Johnson, Jr. and M. D. Johnson, Plaintiffs v. Guaranty Funding Corporation, a corporation, et al., Defendants, in the Circuit Court of Mobile County in Law #22706--G, and the Petition being argued and duly examined and understood by the Court,

'IT IS CONSIDERED that the Petitioner is entitled to the issuance of Alternative Writ of Mandamus.

'IT IS THEREFORE ORDERED that an Alternative Writ of Mandamus be issued by the Clerk of this Court to the Honorable William D. Bolling, as Judge of the 13th Judicial Circuit, commanding and directing him to vacate and set aside his decree entered May 28, 1971 in the cause of Ben H. Johnson, et al. v. Guaranty Funding Corporation, et al., in which the motion of the Guaranty Funding Corporation to amend nunc pro tunc a clerical error or a mistake of the Clerk with respect to the judgment overruling Guaranty Funding Corporation's demurrers to plaintiffs' Replication #2 was denied; and to enter an order and judgment directing the writing up of a judgment in proper form overruling the Petitioner's demurrers to the plaintiffs' Replication #2 and directing the Clerk of the Circuit Court to spread such judgment on the minutes of the Circuit Court of Mobile County; or to appear in the Supreme Court within 30 days from the date of the issuance of the Writ and show cause why the peremptory Writ should not be granted.

'NOW, THEN, in pursuance with the foregoing order, the Alternative Writ of Mandamus hereby issues to the Honorable William D. Bolling, as Judge of the 13th Judicial Circuit of Alabama, commanding and requiring him to perform the acts directed in the foregoing order or that he appear and show cause before the Supreme Court of Alabama within 30 days from this date why the peremptory Writ should not be granted.'

On September 15, 1971, three pleadings were filed in this court on behalf of the respondent, Judge Bolling: (1) 'Answer to Alternative Writ of Mandamus'; (2) 'Motion to Quash Alternative Writ of Mandamus'; and (3) 'Demurrer to Alternative Writ of Mandamus.'

On December 8, 1971, the matter was argued and submitted.

Before we come to a consideration of the questions attempted to be raised by the pleadings mentioned above, we have concluded that it would be advisable to make some observations concerning the mode of procedure to be followed in mandamus cases.

The jurisdiction of a court to issue the writ of mandamus is invoked by the filing of a proper petition which is the first pleading.--s 1072, Title 7, Code 1940; State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602; Shirey v. City Board of Education of Fort Payne, 266 Ala. 185, 94 So.2d 758.

The petition should clearly aver facts upon which the relief sought is based. Mere conclusions of the pleader are not sufficient.--State ex rel. Denson v. Howze, 247 Ala. 564, 25 So.2d 433; Clark v. Beverly, 257 Ala. 484, 59 So.2d 810; Lewis v. Jenkins, 215 Ala. 680, 112 So. 205.

Where, as here, the petition seeks to compel official action, it is incumbent on the petitioner to show, by averments, as well as by proof, a specific legal right in the petitioner to have the act performed, and that the respondent is under a duty and has the authority to do the act.--State ex rel. Gaston v. Cunninghame, 216 Ala. 423, 113 So. 309; Kendrick v. State, 256 Ala. 206, 54 So.2d 442.

When a petition for mandamus shows a prima facie right it has been held proper to issue a rule nisi.--Bryce v. Burke, Probate Judge, 172 Ala. 219, 55 So. 635; Board of Education of Jefferson County v. State, 222 Ala. 70, 131 So. 239; Gainer v. Board of Education of Jefferson County, 250 Ala. 256, 33 So.2d 880; Edge v. Bonner, 257 Ala. 385, 59 So.2d 683.

In our practice, certainly in recent years, the words 'alternative writ of mandamus' and the words 'rule nisi' have been treated as describing the same writ or order.--Ex parte Register, 257 Ala. 408, 60 So.2d 41; Bryce v. Burke, Probate Judge, Supra.

Strictly speaking, they are not the same. The alternative writ of mandamus was originally regarded as standing in the place of the declaration in an ordinary action at common law. It was supposed to contain all the allegations necessary to call into action the power of the court.--ss 449, 450, High's Extraordinary Legal Remedies, Third Edition, pp. 437, 438. In § 451, High's work, Supra, p. 439, it is said:

'The alternative writ being, as we have seen, in the nature of a declaration at law, it is open to all the modes of pleading applicable to a declaration. Hence its allegations may be traversed, or may be confessed and avoided by alleging facts which go to avoid the effect of the writ, or they may be met by raising questions of law, upon the facts stated in the writ, by way of demurrer. . . .'

In Longshore, Judge, etc. v. State ex rel. Turner, 137 Ala. 636, 34 So. 684, Mr. Chief Justice McClellan, writing for the court, said:

'. . . In the first place, the alternative writ in Mandamus is not process, merely, but both process and pleading. In strictness, it is the thing to be answered by the respondent, and it should therefore, by way of premises for and inducement to its mandate, set out the facts upon which the relator bases his right. This writ makes no pretense in that direction. Then the writ must alternatively command a thing to be done, or that the respondent should appear and show cause why a peremptory writ should not issue, commanding him to do that thing. In all cases the respondent has the right to do the act in question, and to an opportunity to do it or enter upon its execution, and make return of the fact in answer to the writ. It is only when and in the event he fails to perform the act that he must show cause against being compelled to perform. . . .

'If the answer to a proper alternative writ is (in)sufficient (that is shows no cause against the right to a peremptory Mandamus asserted by the relator), it is unnecessary to demur to it or to move to quash it. The court will consider the case presented (f)or the relator on the petition and alternative writ, and for the respondent on his answer, determine the insufficiency of the answer, and award the peremptory writ without any challenge of the answer by motion or demurrer. If such motion or demurrer is interposed and sustained, it is only another way of determining the insufficiency of the answer, and by thus proceeding the respondent cannot be prejudiced.

'Of course, if the answer is sufficient--if it does show legal cause against the issuance of a peremptory writ, and its averments are not put in issue as now allowed by our statute--(§ 1073, Title 7, Code 1940) the writ will be denied and the proceeding dismissed. . . .'

It is said of the word 'nisi' in 66 C.J.S. at p. 596 as follows:

'Nisi. In Latin, unless. The word is often affixed, as a kind of elliptical expression, to the words 'rule,' 'order,' 'decree,' 'judgment,' or 'confirmation,' to indicate that the adjudication spoken of is one which is to stand as valid and operative unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its revocation.'

The same description or definition of the word 'nisi' is found in Black's Law Dictionary, Fourth Edition.

In 60 C.J.S. Motions and Orders § 20a, p. 33, it is said that a 'rule nisi is one (order to show cause) which will become imperative and final unless cause be shown against it.' It is different from an ordinary order to show cause which commands the respondent peremptorily, and not alternatively, to appear and show cause. The rule nisi affords the respondent the opportunity to perform the required act.

The character of a pleading is determined from its essential substance, and not from its descriptive name or title.--Union Springs Tel. Co. v. Green, 285 Ala. 114, 229 So.2d 503.

In the order which we issued in this case, we characterize it as an alternative writ of mandamus, but it is a rule nisi in that it does not set out the facts upon which the petitioner or relator bases his right.

The alternative writ and the rule nisi are the same in the respect that in each of them the respondent is ordered to do the specified act or appear and show cause why he has not done so. But they are not the equivalent of each other in all respects because, as previously shown, the true alternative writ should set out the facts upon which the petitioner or relator bases his right, while a rule nisi need not set ot those facts.

We have frequently overlooked the distinction which we made above and have used language subject to no construction other than that an alternative writ and a rule nisi are identical in all respects. Illustrative is the following language used in Shirey v. City Board...