Ex Parte Taylor
Petition filed in this Court for writ of mandamus to Judge J. Russell McElroy, sitting as a Judge of the Circuit Court of Mobile County, requiring him, in a certain cause pending in said court, wherein Harry T. Hartwell is contestant and the petitioner is contestee, to enter an order upon the minutes of said court granting two certаin motions (Nos. 1 and 2), filed by petitioner on March 19, 1938; and further requiring the said Judge to set aside an order made by-him on Marсh 19, 1938, overruling said motions, and also ordering-and directing said Judge to strike from the amended statement of contest “сertain matters, things and allegations” specified in said mоtions.
In short the petition seeks mandamus from this Court, requiring the respondent Judge to grant the petitioner’s motion to strikе certain grounds of contest added by way of- amendment to the statément of contest filed by Hartwell against the рetitioner. These new or additional grounds of contеst
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relate to that stage of the election which was held on September 13, 1937, and which we have heretofore held was the first stage of the election to select a commissioner for the City of Mobile. Groom v. Taylor, Ala. Sup.,
The writ of mandamus is аn extraordinary legal remedy which will only be granted when thеre is a clear specific legal right shown, for the enforcement of which there is no other adequatе remedy. Ex parte Smith,
The general rule is that mandamus will not liе when thére is a remedy by appeal. This rule has prevailed in this state since the decision in the case of State ex rel. Walker’s Heirs v. Judge of Orphans’ Court,
Mandamus will not be granted for the purpose of reviewing the ruling or order of the court, from which nо appeal is allowed, unless the order or ruling be such, if erroneous, that a review on appeal, after final judgment, could not give an adequate remedy. Johnson v. Westinghouse, Church, Kerr & Co.,
It was never contemplated that questions arising during the progress of a trial,reviewablе on appeal, should be determined in advance of final judgment by an appellate court on mandаmus. Particularly is this true where an appeal will furnish adequаte remedy.
Before the trial court is our opinion in thе case of Groom v. Taylor, supra. While in brief of counsel for petitioner and in brief of the trial Judge, termed “Individual Views of Respondent,” it is argued that the decision in this cаse is unsound, yet we are still of the opinion that Groom v. Taylor, supra, has correctly interpreted the statute in question, and it should be sufficient to guide the trial judge in disposing of the case now before him.
It results that the writ prayed for must be denied. > It is so ordered.
Writ denied.
Notes