Miller v. Holder

• Decision Date: 11 July 1974
• Citation: 297 So.2d 802,292 Ala. 554
• Parties: In re Willie Leon MILLER v. William HOLDER et al. Ex parte Willie Leon Miller. SC 682.
• Court: Alabama Supreme Court

Page 802

297 So.2d 802

292 Ala. 554

In re Willie Leon MILLER v. William HOLDER et al. Ex parte Willie Leon Miller.

SC 682.

Supreme Court of Alabama.

July 11, 1974.

Charles M. Ingrum, Opelika, for petitioner.

Walker, Hill, Gullage, Adams & Umbach, Opelika, for respondents.

COLEMAN, Justice.

Petitioner Miller, who is plaintiff in trial court, filed petition for mandamus to require the respondent Judge to allow plaintiff to amend his complaint by adding additional parties defendant. This court granted the rule nisi. The matters giving rise to the instant proceeding are alleged in the petition as follows:

On August 1, 1973, Miller filed his complaint against four persons, namely, Holder, Grant, Williams, and Walton, and also 'NYZ Corp. as surety on Defendant's bonds.' The original complaint contained one count which recites as follows:

'Count One

'The Plaintiff claims of the Defendants the sum of Twenty Five Thousand and 00/100 Dollars ($25,000.00) for damages for wrongfully arresting and imprisoning the Plaintiff on the charge of operating a business without a license, on, to-wit, the 19th day of January, 1973. And Plaintiff avers that the said arrest was made by Defendants Robert Williams and Jack Walton, Jr., who were then police officers acting for the Defendant, William Holder, who was then the Chief of Police of the City of Auburn, County of Lee, State of Alabama. And Plaintiff avers that he was wrongfully arrested on the night of January 19, 1973, and while under arrest was carried to the City of Auburn, Alabama, and was seen by many people while so under arrest; that he was confined to jail for, to-wit, nine (9) hours; that he was kept from his wife and children who were left at home by themselves; that he suffered great humiliation and was greatly mortified, and that he lost time from his work, all to his damage as aforesaid.'

On November 13, 1973, plaintiff Miller filed interrogatories to defendants.

On December 7, 1973, defendants took plaintiff's deposition.

On January 8, 1974, defendants Walton and Williams filed their answers to the interrogatories.

The respondent admits the foregoing averments of the petition.

Plaintiff alleges in his petition that, upon reading the answers to the interrogatories, he discovered that two more parties, namely: James Pearson, Sheriff of Lee County, and John Jackson, an Auburn police officer, were named as participating in the arrest of plaintiff; that, on January 10, 1974, plaintiff amended his complaint by adding Pearson, Jackson, and ABC Corporation, as surety on the bond of Pearson, as defendants. A copy of said amendment is made exhibit to the petition.

Respondent answers that he has no knowledge of when plaintiff discovered that the two additional parties participated in the arrest of plaintiff. Respondent admits that plaintiff amended his complaint on January 10, 1974, the date of the pretrial hearing.

Plaintiff further alleges in petition that pretrial hearing was held on January 10, 1974, and continued until January 15, 1974, that defendants filed motion to dismiss the complaint as amended; that respondent sustained defendants' motion and refused to allow plaintiff leave to add additional parties.

Plaintiff alleges that respondent's ruling was erroneous under the Alabama Rules of Civil Procedure, and that plaintiff acted diligently upon receipt of the answer to his interrogatories and did not desire to cause delay of the trial.

To the latter allegations of the petition respondent answers that under Rule 15(a) of the Alabama Rules of Civil Procedure he has the discretion to deny the amendment, if, in his opinion, the amendment would cause actual prejudice to the adverse party for eight reasons which are stated in the answer. The reasons are discussed later in this opinion.

Counsel for respondent argue in brief that the writ of mandamus should not be available to review the decision of a trial judge under Rule 15(a) of the Alabama Rules of Civil Procedure because of the trial judge's broad discretionary power in granting or disallowing amendments.

As amended by Amendment 328 ¹ of the Constitution of 1901, Section 140 of the Constitution provides in pertinent part as follows:

'(b) The supreme court shall have original jurisdiction . . . (2) to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction . . .'

In all material respects, Section 140, as amended, confers on the supreme court the same authority granted to the court by the following provision in the original Section 140 of the Constitution of 1901, to wit:

'. . . provided, that the supreme court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.'

This court has consistently held that mandamus will not lie to review an interlocutory order of a trial court where adequate relief can be had by appeal. This court has said:

'. . . Where full and ample relief can be had by appeal, writ of error, or otherwise, courts will not, and should not, permit the functions of these everyday remedies to be usurped by Mandamus. The decisions of this court, though not entirely reconcilable, are numerous in support of this fundamental principle.

'. . .

'In Ex parte Elston, Supra (25 Ala. 72), this court, we think, properly repudiated the idea that, at every step taken in the primary court, which a party supposes to be error, an appeal would lie to revise its action; and it was forcibly said: 'Our primary courts would be embarrassed beyond endurance, and our terms would, in a great measure, be consumed in the argument of points raised upon the preliminary action of the inferior courts.' Similar views have been expressed by a learned text-writer, who suggests that interference of this character, if tolerated, would 'speedily absorb the entire time of the appellate tribunals, in revising and superintending the proceedings of inferior courts, and the (consequent) embarrassment and delay of litigation would soon become insupportable, were the jurisdiction by Mandamus sustained in cases properly falling within the appellate powers of the higher courts.'--High's Extra.Leg.Rem. §§ 177--180.

'It is proper to add, that our past decisions have carried the principle of interference by Mandamus, with the interlocutory orders and motions of inferior courts, quite as far as we are willing to extend it. One inclination is rather to restrain, than to enlarge such jurisdiction, as being more in harmony with the weight of authority and sound reasoning. Ex parte Garland, 42 Ala. 559, opinion of BYRD, J.; High's Extr.Leg.Rem. § 186.

'It is not our intention to intimate, by these conclusions, that Mandamus would not lie to compel the Allowance of an amendment by an inferior court in a proper case. This would stand on a different basis from the case under consideration, as, without the benefit of such amendment, the plaintiff might be deprived of the power to put his case to the jury, and thus encounter much unnecessary embarrassment and delay.' Ex parte South & North Ala. R.R. Co., 65 Ala. 599, 600, 601.

A number of cases to the same effect are cited in Alabama Digest, Mandamus, k 4.

In awarding mandamus to require a trial judge to vacate an order, this court said:

'While it is the general rule is this state that mandamus ordinarily will not be granted if the matter complained of can be presented ultimately on an appeal (Martin v. Martin, 267 Ala. 600, 605, 104 So.2d 302; Brittain v. Jenkins, 263 Ala. 683, 684, 83 So.2d 432), a review by mandamus has been allowed where, because of the particular circumstances involved, adequate redress cannot be afforded by appeal after final judgment (Brittain v. Jenkins, supra; Ex parte Merchants Nat. Bank of Mobile, 257 Ala. 663, 664, 60 So.2d 684).' Ex parte State, 271 Ala. 203, 207, 123 So.2d 209, 213.

In a subsequent case the court said:

'In Ex parte Louisville & N.R. Co., 211 Ala. 531, 100 So. 843, this court held that mandamus would lie to review an order denying transfer of a cause from law to equity. The reason for the holding is stated as follows:

"It would work injury to the defendant to require it to go through this trial and wait until after final judgment in the ejectment suit before presenting for review this ruling on its motion. The remedy by appeal after final judgment may be adequate to correct the error, but it is attended with injury to the defendant. . . .' (211 Ala. at 532, 100 So. at 844)'

Ex parte Jim Dandy Company, 286 Ala. 295, 297, 239 So.2d 545, 546.

The test to be applied in deciding whether mandamus should be granted to review an interlocutory order has been stated as follows:

'We have said that the test as to whether mandamus will be issued now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of remedy by appeal. . . .' Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 328, 260 So.2d 589, 597.

In the case at bar, if the ruling disallowing plaintiff's amendment adding additional parties is allowed to stand, he will be put to trial against the original defendants. He will be able to obtain review of the ruling denying his amendment only by appealing from the final judgment in a trial against the original defendants. If plaintiff is successful on such an appeal, and judgment is reversed, he will be put to a second trial against the additional defendants and possibly against the original defendants also. On these considerations, the remedy by appeal is not an adequate remedy. Accordingly, review on petition for mandamus is due to be granted.

It is not to be assumed or understood, however, that mandamus will be allowed as a method of reviewing all rulings denying the right to amend a complaint or other pleading. In accord with the weight of...