Hill v. Wittmeier

• Decision Date: 03 May 1923
• Docket Number: 6 Div. 850.
• Citation: 209 Ala. 355,96 So. 327
• Parties: HILL v. WITTMEIER ET AL.
• Court: Alabama Supreme Court

96 So. 327

209 Ala. 355

HILL v. WITTMEIER ET AL.

6 Div. 850.

Supreme Court of Alabama

May 3, 1923

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Petition of J. A. Hill for writ of prohibition against J. S. Wittmeier and others. From the judgment sustaining demurrers and dismissing the writ, petitioner appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

James Kay, of Oneonta, for appellant.

Russell & Johnson, of Oneonta, for appellees.

GARDNER J.

The writ of prohibition is an extraordinary writ, and is only issued when the parties seeking it are without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal.

In Atkins v. Siddons, 66 Ala. 453, in speaking of this writ, the court said:

"It can never be invoked to prevent proceedings which are purely ministerial in their nature, but only those which are of a judicial character. The issue of an execution by a justice of the peace is a ministerial, not a judicial, act and the writ of prohibition will not, therefore, lie to prevent its issue, however illegal or unauthorized, and whether such process be void or voidable."

To like effect, see State ex rel. Turner v. Bradley, 134 Ala. 549, 33 So. 339.

The petition in the instant case discloses that the foundation therefor rests upon the alleged unlawful issuance of execution by the respondent Swann, justice of the peace of beat 12, Blount county. The Atkins Case, supra, is directly in point to the effect that such was a ministerial act for the prevention of which the writ of prohibition is inappropriate.

Moreover this court is presumed to judicially know the various commission officers, including justices of the peace as well as the extent of their authority, when terms commence and expire. Cary v. State, 76 Ala. 78; Sandlin v. Anderson-Green & Co., 76 Ala. 403; Lucas v Boyd, 156 Ala. 427, 47 So. 209.

For aught that appears in the petition, the execution issued by respondent Swann was merely an alias execution issued under the authority of section 4685 of the code of 1907, under a judgment rendered by his predecessor, and, indeed, the only attack upon this judgment is the fact that petitioner had not been served with any notice of the suit.

"Prohibition being an extraordinary remedy is only granted *** in case of necessity; therefore the existence of another adequate ordinary remedy, or of

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