Smith v. Grayson

• Decision Date: 21 January 1926
• Docket Number: 1 Div. 401
• Citation: 107 So. 448,214 Ala. 197
• Parties: SMITH et al. v. GRAYSON, Circuit Judge.
• Court: Alabama Supreme Court

107 So. 448

214 Ala. 197

SMITH et al. v. GRAYSON, Circuit Judge.

1 Div. 401

Supreme Court of Alabama

January 21, 1926

Original petition by Harry T. Smith and Thomas R. Foster for mandamus to Hon. Claude A. Grayson, as Judge of the Circuit Court of Mobile County. Mandamus awarded.

Harry T. Smith & Caffey, of Mobile, for petitioners.

Gordon & Edington, of Mobile, for respondent.

ANDERSON C.J.

The petitioners brought an action of ejectment in the circuit court against Frank Leslie, the defendant. The defendant then moved to have the cause transferred to the equity side of the docket under section 6490 of the Code of 1923 and which motion was granted over the objection of the plaintiffs. The defendant, having procured the transfer, became the actor or plaintiff on the equity side of the docket, and it was incumbent upon him under section 6491 to amend the pleading or file a complaint setting forth the equitable defense relied upon against the action of ejectment. Cornelius v Moore, 94 So. 57, 208 Ala. 237; Aust v. Sumter Co., 96 So. 872, 209 Ala. 669. The statute requires that this be done within 30 days, and failing to do so, the case may be dismissed by the court. The right to dismiss, however must necessarily apply to a defaulting defendant who procures the removal and does not mean that the court can dismiss the suit of a plaintiff who was not in default. Therefore section 6492 must apply to a case of this sort which provides for a retransfer of the cause when the movant is the defendant and fails to maintain or establish the question, right, or defense asserted by him. The defendant, having failed to file his complaint as required by law, failed to maintain his equitable right asserted in his motion, and the trial court should have granted the plaintiffs' motion to retransfer the cause to the law side of the docket. True, the statute gives the right to review this ruling upon an appeal from a final judgment, but as held in the case of Ex parte L. &amp N.R.R., 100 So. 843, 211 Ala. 531, such an appeal does not afford adequate relief, and mandamus will lie to correct the error.

We do not wish to be understood as holding that the statute requiring an amendment of the pleading within 30 days after the transfer is so mandatory as to deprive the trial court of some discretion in allowing further or additional time upon a proper showing or request, but here the answer offers no excuse for the default or...