Boraim & Co. v. Da Costa

4 Ala. 393 | Ala. | 1842

COLLIER, C. J.

In Eslava v. Rigeaud, [3 Ala. Rep. 363,] .we determined that where an attachment assistant to an action brought in the usual manner, was improperly dismissed, the judgment of the Court could not be corrected by writ of error ;'that the attachment was merely an accessary to the suit, and if the principal judgment was unobjectional the Court would not look into the order of dismissal, inasmuch as an error there would not authorize the cause to be remanded. But it was intimated that in default of another appropriate remedy a mandamus might be awarded. Such is still our opinion.

We have looked into the record, and do not discover that the attachment bond is so obviously defective that we should overrule the motion entirely; yet we do not feel authorized to issue a peremptory mandamus. The usual practise is, when the applicant has made out a probable case, to grant a rule upon the defendant to show cause why the writ should not issue. [Willcock on Municipal Corporations, 209.] This course is 'certainly proper in the present instance, if for no other reason bécause the defendant'had no notice, and consequently could 'not gainsay the motion.

’It !is'therefore ordered that a rulé issue to the Judge of the County Court of Mobile, requiring him to show cause why a mandamus should not issue in conformity to the motion of the plaintiffs.