Moseley v. Collins

• Decision Date: 20 May 1902
• Citation: 133 Ala. 326,32 So. 131
• Parties: MOSELEY v. COLLINS ET AL.
• Court: Alabama Supreme Court

32 So. 131

133 Ala. 326

MOSELEY v. COLLINS ET AL.

Supreme Court of Alabama

May 20, 1902

Appeal from circuit court, Madison county; O. Kyle, Judge.

Mandamus by the state, on the relation of Anthony W. Moseley, to compel Ira F. Collins and others to cancel a writing purporting to cancel relator's name on the membership roll of the Christian Church of Huntsville. From a judgment dismissing the petition, relator appeals. Affirmed.

This is a petition addressed to the judge of the circuit court of Madison county, and filed by the appellee, Anthony W Moseley, seeking, by mandamus, to have the petitioner restored to his rights and franchises as a member of the Christian Church of Huntsville, Ala., a corporation created and organized under the general laws of this state. Under the opinion on the present appeal it is unnecessary to set out the facts of the case in detail. On the hearing of the cause the court rendered judgment denying the writ of mandamus, and ordered the petition dismissed. From this judgment the petitioner appeals, and assigns the rendition thereof as error.

Robt. C. Brickell and Oscar R. Hundley, for appellant.

Cooper & Foster, for appellee.

TYSON J.

The petition for mandamus in this case proceeds upon the theory that no corporate action had ever been taken by the corporation in excluding the petitioner from the exercise of his rights as a member and as an officer. Indeed, it is averred that no vote of the members comprising the corporation was had directing the striking of his name from the roll of membership, but that it was the unauthorized act of the respondents Collins and McBride, assuming to act in their official capacity as elders. The prayer of the petition is for a writ of mandamus directed to the corporation, to Ira F. Collins, Jesse B. Boyd, and S.E. Collins, commanding that a certain paper writing purporting to have been adopted by the members of the corporation directing the church registrar to cancel the name of petitioner on the roll of membership be stricken from the file of the record or memorials of said church, and that any minute entry or record of the proceedings on said paper writing may be expunged; and further commanding that his name be restored to the roll of membership of said church. On the hearing the petition was dismissed, and this appeal is prosecuted from that judgment.

Pretermitting a discussion or decision of the question as to whether the wrongs complained of are not solely for the cognizance of an ecclesiastical tribunal, purely ecclesiastical or spiritual involving the right of the church to exclusively determine we think it clear, treating the case as made by the petition as one involving property rights, that its dismissal was proper. To entitle the petitioner to this extraordinary writ he must show that he has a clear right to the performance of the act or duty demanded, and that on demand the respondents have neglected or refused performance. "The invariable test by which the right of a party applying for a mandamus is determined is to inquire--First, whether he has a clear legal right; and, if he has, then, secondly, whether there is any other adequate remedy to which he can resort to enforce his right." Speed v. Cocke, 57 Ala. 215; Ex parte Edwards, 123 Ala. 102, 26 So. 643; Hill v. Tarver (Ala.) 30 So. 499. In Merrill on Mandamus the rule is stated to be: "When the duty sought to be enforced is of a private nature, affecting only the right of the relator, a personal demand is necessary; and it is also necessary if the duty sought to be enforced is of such a character that it could not be expected to be performed till demanded. Decisions that there must be an express and distinct demand or request to perform must be confined to such cases. Where however, the duty is of a purely public nature, wherein no individual right or duty is concerned, and where there is no one person upon whom either a right or duty devolves to make a demand of performance, an express demand or refusal is not necessary." Section 224. The same author says: "Since this writ never issues against a party unless he is in default, it must clearly appear by the allegations of the petition that a demand has been made on him to fulfill his duty and perform the act desired. * * * When an averment of a demand is necessary, the lack of such averment is fatal, even though the trial court may find such a request and refusal. * * * When a demand is necessary, the fact that it was made must be alleged with precision." Section 257. Again, he says: "It must appear by the allegations of the petition that the party complained of refused or failed to comply with the demand to fulfill his duty." Moses on Mandamus, on page 18, states the rule to be: "In order to lay the foundation for issuing a writ of mandamus,...