133 Ala. 212 | Ala. | 1901
This is a petition for a mandamus to compel the chancellor to vacate an order made by him in the cause of Winston Jones v. L. D. Hardy pending in the chancery count of Marengo county, in which the chancellor on the application of Hardy set aside and annulled an order made by the register of said court in vacation, dismissing the complainant’s bill, on the motion of the complainant, Winston Jones. The facts as stated in the petition show, that the petitioner, Winston Jones, filed his bill in the chancery court of Marengo county against L. D. Hardy and others, seeking a discovery and an accounting. Demurrers were interposed by the several defendants, which were sustained as to all of the defendants, except the defendant Hardy, and were overruled as to him. This decree on the demurrers was affirmed on appeal to this court. — Jones v. Hardy
The defense of set-off pleaded in the answer and upon which the affirmative relief is sought by way of cross-bill, is purely legal as contradistinguished from equitable. It is matter, as to which, the cross-complainant has a complete and adequate remedy at law7. And while it is proper subject for a cross-bill, where affirmative relief is prayed, it is not an independent equity, or matter of purely equitable cognizance, such as Avould support an original bill in the first instance. In such a case the dismissal of the original bill carries w7ith it the cross-bill. — Abels v. P. & M. Ins. Co., 92 Ala. 382; Wilkerson v. Roper, 74 Ala. 140.
The order of the chancellor, vacating the order of dismissal made by the register in vacation, and restoring the cause to the docket, was purely interlocutory, and from it no appeal wrould lie. Not being an interlocutory decree from which the statute authorizes an appeal, the only remedy left ito the complainants is by mandamus. It is true, that ordinarily, it is not the office of this Avrit to reAdew and mdse judicial action, but generally to 'Compel such action; yet, as has been 'decided by this court, the Avrit wdll lie to correct the erroneous ruling of a court where injury results, and there exists no right of appeal or other adequate means of redress. — Ex parte Woodruff, 123 Ala. 99; Wilson v. Duncan, 114 Ala. 659; Ex parte Tower Man. Co., 103 Ala. 415; Ex parte Hayes, 92 Ala. 120.
To determine wdiether the ruling of the court be erroneous, and such as entitles the petitioner to this remedy, of necessity involves a consideration and review7 of the action of the court complained of in the petition. And if it be concluded upon such review'and. 'Consideration that there is no error, the writ, as a matter of course, ■would be denied. The complainant had his bill dismissed, on application to the register in vacation, under the prolusions of section 703 of the Code, which reads as
Mandamus denied.