Ex parte State ex rel. Stow, 51 Ala. 69

Ex parte State ex rel. Stow

51 Ala. 69 | Ala. | 1874

PETERS, C. J.

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.

1. There can be no doubt that mandamus is a proper remedy, under our practice, in such a case as this. Stephenson v. Mansony, 4 Ala. 318; 20 Ala. 330, supra.

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 *74from its prosecution, by striking his cause from the docket of the court, which was established for its trial in the only mode that any suit can be justly said to be tried — that is, on its merits ; on its “ right and justice.” It is in this country a gross misuse and contempt of the sovereign and his .authority, to defeat or fall short of this great end of all litigation, — a trial on the merits.

2. A suit in chancery is commenced by bill addressed to the chancellor of the division in which the same is filed. Rev. Code, § 3325. Prom this it is to be inferred, that the filing of the bill, after it is prepared, as required by the statute, is necessary to entitle the cause to a place on the docket. Rev. Code, §§ 3327, 725, cls. 2, 6; Ib. p. 823, Rules 1 & 63. The original and technical application of the word file has long gone out of use. It means to fix upon a string or wire, kept by the clerk or register of the court in which the paper is intended to be filed. Phillips, Goldsby & Blevins v. Beene's Adm’r, 38 Ala. 248. This practice has never been in use in this State. A mere deposit of the paper with the clerk in the court during its session, for the purpose of filing the same, has under our practice been deemed sufficient. But in order to have competent proof of the filing, it is proper for the clerk or register to indorse the date of the filing, and the fact of filing, on the paper filed, and sign the same as clerk or register, or enter the same as filed in the proper docket. This puts the paper in the custody of the court, and the power of the court may be exerted to protect it, and compel its production, or supply its loss. Here the action taken on the first bill was a sufficient filing to amount to a commencement of the suit.

3. After suit is commenced, the complainant may, on application to the register in vacation, dismiss his suit, giving the defendants, who have “ pleaded, answered, or demurred,” five days’1 notice of such application; and on such dismissal the register may issue execution against such complainant for all costs accruing to the time of the dismissal. Rev. Code, § 3353. But it will be seen that the rule thus prescribed only applies in such cases as the defendants have “pleaded, answered, or demurred.” This is not such a case, in reference to the bill first filed. It was simply filed or deposited with the register or court, by the application for the injunction, and no other steps were taken. When this latter is the condition of the suit, the complainant “ retains the absolute dominion of the suit until the decree ; and until that stage of the suit, he may dismiss the bill at his pleasure.” 1 Smith’s Ch. Pr. p. 312. The memorandum on the register’s docket is sufficient to show that this power over his suit the complainant intended to exercise, and did exercise in a form competent to effect his *75purpose. The fact that the memorandum was made by the clerk of tbe register, does not vitiate the act. It will be presumed, in support of its regularity, that tbe register knew of the act and approved it. There was no one interested in the act thus performed, save the complainant, and if he treated it as valid, it should be so treated by the court.

4. There is no rational dispute about the dismissal of the second bill. Then, at the time of the chancellor’s action in striking the third bill, or bill numbered 962, from the docket, there was only the one bill pending in court. This bill could not be stricken from the docket for the reasons shown in the chancellor’s answer to the rule nisi. If there had been doubt in the mind of the chancellor as to this, the proper practice would have been a rule to show cause served on the complainant, why he should not elect to dismiss all his bills save one ; and upon his election, to have retained that one upon the docket, and dismissed the others ; and if he refused to make his election, then to have dismissed all save the one first filed and still pending in the court.

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.