Ex parte Huckabee

71 Ala. 427 | Ala. | 1882

BRICKELL, C. J.

Mandamus is an extraordinary legal remedy, granted only when a clear, specific legal right is shown, and for its enforcement there is no other adequate remedy. The absence of a clear, specific legal right is fatal to an application for the writ.-State v. Comm'rs Court, 3 Porter, 412; State v. Judge, 13 Ala. 805. If it be conceded to. the relator that it is an appropriate remedy to compel the judge of an inferior court to insert in a bill of exceptions a statement which he has stricken therefrom as untrue in point of fact, or as immaterial, or as inappropriate, the truth of such statement, and a necessity for its introduction into the bill must be affirmatively shown, before it can be pronounced that there is a legal right to its insertion. The words stricken from the bill of exceptions, and which it is proposed the judge shall be compelled to restore, are, “ This Toeing all the evidence im, the case.'” The exceptions reserved are to the refusal of instructions to the jury, requested by the relator. The refusal can and. will be revised, if it is shown by tbe bill of exceptions that thg instructions were not abstract,— that there was evidence before the jury upon which they were based, and to which they could be applied, or were not addressed to the sufficiency of the evidence.-1 Brick. Dig. 248, § 80. This can be shown without a recital of all the evidence which may have been introduced on the trial; and it is difficult to conceive of a necessity for cumbering the bill, in such case, with a recitation of all the evidence, — as well that which is impertinent, as that which is pertinent to the instructions refused.

The application not showing that the bill of exceptions, without these words, does not show the instructions were not abstract, or that their insertion can be necessary to show that they were not abstract, a right to the insertion is not shown. If, as the bill of exceptions now stands, it is not shown the instructions were not abstract, it is certain the insertion of these words could not cure the defect.

Application denied.