89 Ala. 237 | Ala. | 1889
We are unable to concur with counsel who appear against the application, that money paid on, and in obedience to a decree of the Chancery Court, can, in any case, be said to be paid voluntarily, in such sort as to preclude its recovery in the event of a reversal of the decree. We understand the law tobe settled to the contrary.—Cahaba v. Burnett, 34 Ala. 400, 407; Knox v. Abercrombie, 11 Ala. 997; Life Ins. Co. v. Stewart, 95 Ind. 588; Wright v. Aldrich, 60 N. H. 161; Hollingsworth v. Stone, 90 Ind. 244; Scholey v. Halsey, 72 N. Y. R. 578; Hiler v. Hiler, 35 Ohio St. 645.
This case is clearly distinguishable from McCreliss v. Hinkle, 17 Ala. 459, and Tarleton v. Goldthwaite, 23 Ala. 346, in which the question arose on a motion to dismiss the appeals taken by the parties, who had received satisfaction of decrees in their favor from which the appeals were taken. There had been no ascertainment that the decrees were erro
That tbe chancellor before whom the case is pending has the power to make an order for restitution in such case, is not controverted. Tbe parties are before him, and in and about, and in tbe conduct of that cause, they are sublect to his control. The facts which constitute tbe only predicate for such an order' — a decree, payment under it, and its reversal — are a part of the cause itself. There can be no dispute or mistake about them. On them tbe order for restitution goes as a matter of course. It does not involve tbe exercise of judicial functions. There is no remedy for tbe refusal to grant tbe order, except mandamus. Our opinion is, that mandamus is the proper remedy. And tbe writ will be awarded in this case, to be issued only on tbe further application of petitioners’ counsel, if restitution, or an order therefor, is not made in the court below upon advice of our conclusion.