1 Ala. 15 | Ala. | 1840
— Samuel T. -Jones, by his counsel, has moved the Court for a writ of Mandamus to the Judge of the County Court of Covington, upon petition setting forth that he is a distributee of the estate of Benjamin Merrill, deceased: that the administration of that estate has been committed to Jacob Merrill, by the County Court of .Covington, and that the Judge of that Court has permitted a final settlement to be made by the administrator, without forcing him to bring into the account certain slaves and other property which -came to his
The case referred to in the petition as having been decided by this Court, is Merrill v. Jones (at January Term, 1839.) In that case, a writ of error had been prosecuted from the County to the Circuit Court of Covington. In the latter Court, the decree of the County Court was affirmed: whereupon, a writ of error was prosecuted to this Court, where it was determined that the Circuit Court should have dismissed the writ of error; and consequently reversed its judgment, and remanded the case, with instructions to dismiss the writ of error, unless the record should “ be so perfected on certiorari or otherwise, as to show a final judgment or decree in the County Court.”
It is clear that the proceeding in the County Court was not at all disturbed by the judgment here rendered — if it was valid previously, it was so still. This Court addressed no mandate to the County Court, and if the Judge of that Court allowed himself to be ifluenced in the settlement of the intestate’s estate by our decision, he greatly misapprehended it, and accorded to it a potency which it did not legitimately possess.
The only question necessary to be considered is, does the petition disclose such a state of facts as prima facie entitles the petitioner to a writ of Mandamus. This writ will be granted only where there is a specific legal right, and no other specific legal remedy, adequate to enforce that right. (The King v. Marquis of Stafford, 3. T. Rep. 651; The King v. Archbishop of Canterberry, 8. East 219; The King v. Margate, 3. B. & A. Rep. 224; The King v. Haythorne, 5 B. & C. Rep. 422-429. The King v. Severn & Wye Comp. 2. B. & A. Rep. 646; the King v. Dean, 2. M. & S. Rep. 80; The King v. Windham, Cowper Rep. 378.) But where there is another specific and adequate legal remedy, the writ of Mandamus will not be
Let us now enquire whether, under the rules laid down, the petitioner is entitled to the remedy he seeks. Where the Judge of a County Court makes a final settlement of an estate of a deceased person; or in directing its distribution, it is competent for a party aggrieved to prosecute a writ of error, that such order may be reviewed. And where the facts are not shown by the ordinary entries of record, it is competent to bring them to the view of the Court, by bill of exceptions.
In the case at bar, if the Judge of the County Court refused to order a distribution of the intestate’s estate, his refusal, if it did not otherwise appear, might have been excepted to, and every advantage allowed on error that could be had by Mandamus. It is then obvious that the petitioner has an adequate and legal remedy, other than that asked for; and consequently the prayer of his petition must be denied.
If the Judge of the County Court had declined all proceedings in the [settlement or distribution of the estate, then the petitioner could have had no order to appeal from, and in default of another remedy would have been entitled to a Mandamus.— But whether in such case the application for the writ should not be made to the Circuit Court, and whether it can be made to this Court, until it has been denied by that Court, is a question which we leave to be decided when it shall directly arise.