42 Ala. 559 | Ala. | 1868
Arcase was upon the docket of the circuit court of Barbour county, wherein one Moses was the plaintiff and the relator was the defendant, and the alleged cause of action was a promissory note. The defendant made a motion,, addressed to the circuit court,
In England, the rule to show cause why a motion for a mandamus should not issue is strictly ex parte. A rule nisi is granted, and upon a return of the rule a trial is had.— Tapping on Mandamus, m. pp. 5, 6. There, is however, an exceptional class of cases in which the rule will be made absolute in the first instance. — Tapping on Mandamus, 287, 288, 298. But where the right is of a private nature the application is for a rule nisi. If the application be for a rule nisi, notice is not essential. — Tapping on Mandamus, 287. Upon the granting of a rule nisi, the court will, in the exercise of a discretion for the promotion of justice, order a notice of the rule to third persons who are interested. — Tapping on Mandamus, 300 ; Rex v. Vice Chan., dec., Burrow, 1847; S. C. 1 W. Blackstone, 547; King v. Bankes, 1 W. Bl. 445; S. C. Burrow, 1452 ; King v. Simpson, W. Blacks. 456, 458. Upon the return of the rule the court allows all those who have had notice of it, or who are legally interested in the question, to show cause. — Tapping on Mandamus, 302. It is not by any means the practice in England to settle the merits of a case without notice to the parties who have an adverse interest.
In.England, in the supreme court of the United States, and in Massachusetts, and Pennsylvania, a mandamus is
Some of the opinions of this court seem to favor the same doctrine. — Ex parte Mahone, 30 Ala. 49; Lamar v. Commissioner's Court, 21 Ala. 772; State v. Bowen, 6 Ala. 511; Ex parte Garlington, 26 Ala. 170.
In this State the practice has been to' apply for a mandamus upon motion, and to grant the rule nisi. In one case, State ex rel Nabors, 7 Ala. 459, an alternate mandamus was issued. In this court, where the motion relates to some matter in an inferrior court, the usual practice has been, to hear argument for and against the motion for the rule nisi. We have looked into the precedents, and in most of the cases there was an antagonistic appearance and argument. — Ex parte Echols, 39 Ala. 698; Northington, 37 ib. 490; T. & C. R. R. Co. v. Moore, 36 ib. 371; Lawrence, 34 ib. 446; Morgan, 30 ib. 51; Lowe, 20 ib. 530; Elston, 25 ib. 72 ; Garlington, 26 ib. 170 ; Robins, 29 ib. 71; Small, 25 ib. 74 ; State v. Judge, dec., 15 ib. 740 ; Adams & Knapp v. Horsefield, 14 ib. 223 ; Henry, 24 ib. 638 ; Comstock v. Givens, 6 ib. 95 ; Brazier v. Turner, 4 ib. 569. In a few cases there does not appear to have been an appearance and argument by an adverse party, though in some of them the court rejected the motion, upon the ground that mandamus was not the remedy. — Ex parte Putnam, 20 Ala. 592; Cole, 28 ib. 50 ; Nabors, 7 ib. 459 ; Johnson v. Glasscock, 2 ib. 519; Mansony, 1 ib. 98; Jones, 1 ib. 15.
In several classes of cases in England, notice of the application for the rule nisi is required by statute. While the general rule in this country is to allow the motion for the rule nisi without notice, yet it is by no means uniform. In
Under the practice prevalent in this State, no costs is recovered or paid when the rule nisi is ordered. Judgment for costs can not be rendered until return is made to the rule. — Tap. on Man. 420. As no return is in practice made to the rule, no final conclusion of the proceeding is ever attained, and no costs is recovered. In this respect our practice needs to be reformed.
It would probably be better to adopt some rules of practice governing the proceeding by this court by mandamus, but we will not attempt to do so at this time.
We conclude that an opinion upon questions of law adverse to parties not before the court, and not notified, should not be expressed, unless some extraordinary emergency should arise, in which delay would be highly injurious. If the court can perceive plainly, that the relator is not entitled to the mandamus upon his own showing, it is proper to proceed to judgment against him. I am not able, for myself, to attain the satisfactory conclusion against the relator’s right to the relief he seeks, which would justify me in refusing the rule nisi, and I would prefer, without making
The facts disclosed by the record, show that a suit was commenced on a promissory note, in the circuit court of Barbour county, on the 27th day of February, 1867, by Isaac G. Moses, executor, &c., against Edward Garland. Service was accepted of the complaint, by the defendant therein, in writing, on that day; and the summons to which the complaint was attached, not having been dated and signed by the clerk, the defendant waived, also in writing, a summons and copy. After the acceptance of service, the counsel for the plaintiff retained tlie papers in the cause in their possession, until the trial term, which was the spring term, 1868, when they had the cause entered upon the trial docket. The papers had never before been returned to the court, or the clerk thereof, nor placed on any docket. But as the bill of exceptions informs us, “ the defendant expected the case was in court, and was present at the trial term, together with counsel he had employed to attend to the cause.” The defendant moved the court, at the trial term, to strike the'cause from the docket, contending that if the facts showed a suit had ever been instituted, they also showed it had been discontinued.
We are satisfied the facts disclosed show that a suit was commenced, which might have been pleaded in abatement to another suit upon the same debt, if such other suit had been instituted. — Dean v. Massey, 7 Ala. 601. The material inquiry then is, whether the suit was discontinued after its commencement ?
We do not controvert the proposition, that a suit may be discontinued by a gap or chasm in the proceeding, occurring after its commencement; provided the gap or chasm be not the result of some omission of the clerk of the court, or other ministerial officer. Such seems to have been the
But what gap or chasm occurred in the proceeding we are considering ? None, unless such was constituted by the omission to deliver the papers to the clerk, before the trial term. Had they been delivered to the clerk before, he would not have been authorized to enter the cause upon the trial docket, any earlier than it was thus entered.— Eevised Code, § 767. Nor would any action of the court whatever, have been necessary to continue the cause in court, until the trial term. It is difficult tó percive, then, how any gap or chasm was produced in the proceeding by the non return of the papers.
It is only at the trial term, that a cause must be tried, unless good cause be shown for its continuance. — Eevised Code, § 2660. And, as a general rule, it is only at, or subsequent to such term, that a gap or chasm in the proceeding, not attributable to the clerk or other ministerial officer, can operate as a discontinuance.
We would not be understood as sanctioning the practice pursued in the case we are considering. The papers properly should have been delivered to the clerk, on the acceptance of service. But that they were not thus delivered, may be attributed to the acceptance of service and waiver of a summons by the defendant; and surely he should not be heard to complain of the consequence of his own act, permitted for his own benefit, especially when no substantial right of his has been prejudiced or concluded thereby.
It is said in the opinion of the court in the case of Ex parte Echols, 39 Ala. 700, “ that the writ of mandamus can only issue to some officer required by law to perform some mere ministerial act, or to a judicial officer to require him to take action; but not in a matter requiring judgment or discretion to direct or control him in the
This court has clearly, to my mind, been far from uniform in its decisions in the application of the rule. And I differ with my brethren in the application of the rule to the case in hand, and prefer to follow the decisions of this couN hereinafter next cited, as asserting and making the appropriate application of the doctrine supported by the weight of English and American authority. — Ex parte Mahone, 30 Ala. 49 ; Lamar v. Commissioner's Court, 21 ib. 772 ; State v. Bowen, 6 ib. 511; Ex parte Garlington, 26 ib. 170 ; Ex parte Rowland, ib. 133; Ex parte City Council of Montgomery, 24 ib. 98; Ex parte Elson, 25 ib. 72; Ex parte Small, ib. 75, and other cases.
I do not think there is a single case in our reports which makes a different application of the general principle announced in Ex parte Echols, supra, than that given in the cases last cited by me in the case in hand, where the question was made and argued by counsel, and was considered and decided upon authority by the court. Decisions not so made are not entitled to much weight against the well considered and almost uniform adjudications of the courts of this and the mother country, as well as the unvarying current of authority of the text books.
If we take jurisdiction to review the action of the inferior courts on interlocutory orders and motions in some
I also concur in the conclusion arrived at by my brother Judge upon the point stated in his opinion.
The application for a re-hearing is made partly on the authority of N. E. & S. W. R. R. Co., 37 Ala. 597. We are not aware of any rule of court which affects the correctness of the opinion heretofore delivered by the court, and we adhere to it. Consequently, the application is overruled. — Forrester v. Forrester, 39 Ala. 320.