Ex Parte Sovereign Camp, W.O.W.

104 So. 899 | Ala. Ct. App. | 1925

An application is made to this court, by motion entered here on the motion docket, to which our attention is called, for the grant of the writ of mandamus to O.A. Steele, Judge, etc., to compel the vacation of the order, decision, or judgment of said Steele as Judge, etc., overruling appellant's motion to set aside the judgment nil dicit entered against appellant, and shown by the record in this cause, and to grant appellant's motion in the circuit court for a new trial, all of which matters are included and properly certified in the original record in this cause and now before this court on submission. Upon the original submission of this cause, this court held that the action of the trial judge in denying appellant's application to set aside the judgment rendered nil dicit, and to grant a new trial, was error, and for this error the judgment was reversed. 104 So. 895.¹ On certiorari to the Supreme Court (Ex parte Gay [7 Div. 515] 104 So. 898), it was held that appeal was not the proper remedy, and remanded the case to this court for further proceedings. With the cause here pending, appellant makes the motion for writ of mandamus, of which motion appellee has had notice. The Supreme Court, in Aust v. Sumter F. S. Co., 209 Ala. 669, 96 So. 872, in a case in all respects similar to the case at bar, holds the motion not to be presented on transcript paper as required by Supreme Court rule 36, and for that reason could not be considered. Upon that opinion, which is the latest expression of the Supreme Court on the subject, perhaps we should decline to consider the motion and dismiss the appeal, but in other decisions of the Supreme Court, of equal force and perhaps more thoroughly considered, it is held that:

"The practice of applying by motion, entered here on the motion docket, of which notice is given to the parties in adverse interest, has prevailed too long now to be departed from, however informal it may seem." Ex parte Tower Manufacturing Co., 103 Ala. 415, 15 So. 836; Ex parte Garland,42 Ala. 559; Brazel v. N.S. Coal Co., 131 Ala. 416,30 So. 832; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Baltman, 18 Ala. App. 293, 92 So. 24.

It is also held by the same authorities that, "when the application is made to this court for the grant of the writ, directed to an inferior court of record, because of matters necessarily of record, an authenticated transcript of the record renders unnecessary the verification by the oath of the applicant or other affidavits to support it."

It is the settled law of the state that the writ of mandamus will be liberally employed to correct errors in the rulings of lower courts where injury has resulted, and there exists no right of appeal or other adequate means of redress, and, even if we were inclined to a contrary view, which we are not, the justice writing the opinion in Ex parte Gay, supra, in this identical case points out the remedy. Ex parte Jones, 133 Ala. 212,32 So. 643; Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Manufacturing Co., supra.

Let the rule nisi issue as prayed, returnable to this court at the call of the Seventh Division.

Rule nisi ordered.

BRICKEN, P.J., not sitting.

¹ Post, p. 650.