103 So. 558 | Ala. | 1925
The petition is for mandamus directed to the judge of the Eleventh judicial circuit. The controversy was first sought to be presented to this court by appeal from an interlocutory decree allowing alimony and counsel fees pendente lite. Jackson v. Jackson,
The attorneys for the petitioner say:
"The undersigned attorneys most respectfully refer the court to the briefs on file in this cause when the same was before the court on appeal as Eighth Division, No. 624, L. L. Jackson, Appellant, v. Kate Furr Jackson, Appellee. In the petition for mandamus the transcript in said cause is incorporated and made a part of the petition. The transcript of the entire proceedings being in the Supreme Court and especially referred to and incorporated in the petition, the authentic record will be before the court." Citing Brady v. Brady,
This is also the effect of averments contained in the petition for mandamus. It is further averred in the petition that the circuit court "was without jurisdiction to render" the decree; that the "jurisdiction of the juvenile court was original and exclusive, and therefore a bar to the recovery in the equity court."
The respondent moves the court to quash the proceedings against him, and demurs thereto on grounds that the writ is not in the alternative, giving the right of compliance with the "demands in the petition at any time before the return day thereof" — to either "vacate his order, or to appear and show cause why it should not be vacated"; that he is not in "default in this cause" until he has been invoked or given "the opportunity to vacate his order allowing alimony"; and he is not shown to have "refused to do what the petition asks" this court to "make this respondent do."
It has been declared in this jurisdiction that mandamus will not be granted for the mere purpose of a review. Southern Ry. Co. v. Walker,
In a case where mandamus lies, the general rule is that —
"In order to entitle a party to the writ of mandamus he must show that he has a clear legal right to demand the performance of a specific duty. In other words, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required. 19 Am. Eng. Ency. Law (2d Ed.), p. 725, and note 4." Minchener v. Carroll, Treasurer,
It is further declared in this jurisdiction that in a proceeding for the alternative writ of mandamus a respondent may comply or question the sufficiency in law of the petition, or, by demurrer or motion to quash, question the same by plea or answer. When he elects to comply he may answer excusing *498
by the averment of a specific compliance "following the mandatory clause of the writ, and stating his performance of the duty as by the writ commanded." State ex rel. Pinney v. Williams,
The nature of and proceedings incident to such petition in the English and American courts are discussed, and the requirements that must precede a judgment for costs — the issue of necessary notice and a reasonable opportunity for a return to be made to the rule — are indicated by Judge Walker in Ex parte Garland,
In Ex parte Tower Mfg. Co.,
Rule 36 of Supreme Court Practice was first carried into the Code of 1865, and was of force when the decision in Ex parte Tower Mfg. Co.,
The respective insistences under such pleadings and evidence, and the respective arguments of counsel, invoke a decision of (1) whether the respondent judge had the jurisdictions, presiding in the circuit court, to render the decree fixing alimony and attorneys' fees; (2) whether the prosecution for abandonment of wife and children in the juvenile or domestic relations court (alternative allowance there made in lieu of punishment imposed) is a bar to the filing of bill and prosecution to the decree for alimony and attorneys' fees; and, lastly, the inquiry is made whether the venue of such action by complainant was in the county of the domicile of the husband.
The respondent, as such judge, and the circuit court had original jurisdiction to render the decree fixing the alimony and attorneys' fees in question. Sellers v. Sellers (Ala. Sup.)
The prosecution for "abandonment and desertion" in the juvenile or domestic relations court for the support of the wife and children and decree for $25 per month is no bar to the proceeding for alimony and attorneys' fees, though they be allowances pendente lite. The statutory jurisdiction conferred on the juvenile or domestic relations court does not deprive a court of equity of its original jurisdiction in the premises. Code 1907, § 3803; Coleman v. Coleman,
The finding of the register of the facts adduced on oral examination of the witnesses has the effect of a jury's verdict. Bidwell v. Johnson,
We take judicial knowledge of the certified and original record in this cause on appeal, and have refreshed our recollections by reference thereto, as invoked so to do by petitioner and his counsel. Brady v. Brady,
The writ is denied.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.