51 Ala. 69 | Ala. | 1874
This is an application for mandamus against the chancellor of the southern chancery division of the State, to compel him to reinstate a cause on the docket, which has been improperly stricken from the same, by order of said chancellor. There was a rule nisi granted in the first instance, according to the usual practice of this court (Ex parte Lowe, 20 Ala. 330, 334); and the chancellor, having been duly served with the rule thus granted, now seeks to be discharged upon his answer to the same.
It may be well doubted whether any court in this State has authority to strike a cause from the docket, except as a means to compel a party to comply with some proper order made in the progress of the suit. Such a practice is not to be encouraged. Courts are established for the redress of injuries, by the administration of the proper remedy by due course of law. This is the emphatic declaration of our fundamental law. The constitution declares, “ That all courts shall be open ; that every person, for any injury done him in his lands, goods, person, or reputation shall have a remedy by due process of law ; and right and justice shall be administered without sale, denial, or delay.” Const. Ala. Art. I. § 15. And another section of the same instrument further declares, “ That no person shall be debarred from prosecuting or defending, before any tribunal in the State, by himself or counsel, any civil cause to which he is a party.” Art. I. § 12. The spirit and policy of these commands should govern our practice. Their purpose and object is to secure a trial of all causes in court on the merits. This is the sole purpose of all suits, and the courts should give it every possible aid. The judge, who presides in the court, is simply the agent of the sovereign, to administer the sovereign power in the judicial branch of the government. The citizen is the sovereign. It is his power that the court administers. Can this be done by driving the citizen out of court, without' hearing his complaint, and administering the proper remedy, upon an issue formed upon the merits of his suit ? Our whole system of pleading compels an answer in the negative. And could the sovereign in his unlimited authority stand in court, he would very probably dismiss the judge, his agent, if he refused to hear his .suit upon the merits, for which alone it was instituted, or if he attempted to debar him
In this view of the practice, the chancellor’s order dismissing bill numbered 962, or striking the same from the docket, was not made in conformity with law, and his answer to the rule nisi is insufficient. The rule and order nisi is made absolute. Let a mandamus issue accordingly, returnable at the present term of this court. Costs are reserved until the return of the mandamus.