Jackson v. Mobley

• Decision Date: 17 November 1908
• Citation: 157 Ala. 408,47 So. 590
• Parties: JACKSON v. MOBLEY, CLERK.
• Court: Alabama Supreme Court

47 So. 590

157 Ala. 408

JACKSON v. MOBLEY, CLERK.

Supreme Court of Alabama

November 17, 1908

Appeal from Circuit Court, Greene County; A. H. Alston, Judge.

Application for mandamus, on relation of Henry Jackson, against R. E Mobley, Clerk of the Circuit Court of Greene County. A demurrer to the application was sustained, and the writ denied, and relator appeals. Reversed and rendered.

Harwood & McKinley, for appellant.

McQueen & Hawkins and L. K. Pounders, for appellee.

McCLELLAN J.

Henry Jackson was indicted for a misdemeanor in September, 1907, by the grand jury of Greene county. The solicitor of the Sixth judicial circuit, upon the authority of Code 1896, § 5283 issued subp nas ad testificandum to two witnesses for the state, against the defendant, in the trial of said cause. On February 29, 1908, these subp nas were executed by the sheriff, and were by that officer properly so indorsed and delivered to and filed with the clerk of the circuit court on the docket of which court the prosecution was pending. Subsequently, and before the trial of the case, the defendant made these three separate demands upon the clerk: (1) That he make entry upon the subp na docket of that court of the names of the witness so summoned in the cause, as required by subdivision 6, § 934, of Code 1896; (2) that he deliver the file, including said subp nas, to the attorneys of record for the defendant, they then and there tendering a receipt therefor, in accordance with Code 1896, § 2646; and (3) that he make out and deliver to said attorneys of record for the defendant, they having, for him, tendered the requisite fees therefor, "a correct transcript, properly certified," of said subp nas, in accordance with subdivision 14, § 934, Code 1896. Each of these demands, relating to said subp nas, was refused by the clerk; and the defendant thereupon presented his petition for mandamus to the judge presiding for the trial of causes in said court, praying appropriate action to compel the clerk to do the ministerial acts indicated by the demands stated. The submission was on demurrer to the petition and the answer of the clerk. The demurrer was sustained, and the mandamus denied, and the petition dismissed. From this judgment the appeal is prosecuted.

If, to effect a purpose of this character, it is necessary to first invoke the power of the court to which the clerk is attached before resort may be properly had to another tribunal (Ex parte Sibert, 67 Ala. 349; Ex parte Mansony, 1 Ala. 98), that condition was here met; for, whether the action of the court is invited by petition, praying an order of the court to compel the observance of a duty by the clerk with reference to a cause pending in the court, or with reference to papers or records officially in his custody, or praying mandamus to effect either of those purposes, so far as the condition stated is concerned, the court, to which the clerk is attached, is afforded the primary opportunity in the premises; the action taken or to be taken by the court being the same, in legal effect, in either event. Any other view would be insufferably technical. The duties, the performance of which were demanded of the clerk, are patently ministerial, void of discretion in exercise, and hence mandamus is the appropriate remedy. 26 Cyc. p. 199; 1 and 5 Mayfield's Digests, under title "Mandamus."

Generally speaking, and so from the universal policy underlying the judicial systems of this country, secrecy in the exercise of judicial power or of preliminary services leading to the effective exercise thereof, is not tolerable or justifiable, except in a few instances where publicity might naturally tend to defeat the purpose for which our courts exist, such as one enforced with respect to indictments and testimony before grand juries. Code 1896, §§ 5047, 5048. In criminal cases, after arrest, it is not conceivable that the broad policy for openness and publicity of all judicial acts and processes relating to the prosecution, by the court itself or by public officers charged with duties thereunto, should suffer qualification in any respect, however preliminary, or in nature ex parte, the steps taken or action had may be.

"Subp na ad testificandum" is an expression, whatever the official hand clothed with the right to issue it, of inherent power possessed by courts having the power to hear and determine causes of controversy to call for proofs of the facts involved and to summon and compel the attendance of witnesses before them. Process, to such purpose, is essentially judicial. 1 Greenleaf on Evidence, § 309. It is as is readily seen, in entire accordance with the general policy of openness and publicity, subject to the exceptions indicated, of judicial acts and processes, that the statutory provisions cited...