Ex parte Woodruff

Nov 15, 1898
Versions:123 Ala. 99
HARALSON, J.

Wе have but recently said, consistent with the authorities on the subject, that the function of a writ of mandamus is to compel a subordinate court to hear and decide a controversy of which it has jurisdiction; or if the case has beеn heard, to render a judgment or enter a decree in a cause; but nоt to correct errors, or direct what particular judgment or decree shall be rendered; not to control but compel judicial action. But, according to the decisions of this court, this ‍‌​​‌‌​​‌​‌​​​​​‌​​‌​​‌‌​​‌​​​‌‌​​‌‌​​​​​‌‌​‌​​​‌‍is not the full limit of the writ, for as we hаve held, “If an order, or judgment, or decree, is made or rendered, which is not the subject of revision by appeal, or other revisory remedy and yеt is erroneous, working injury to the party complaining, and there be no other legal remedy, adequate to the correction of the error and the prevention of the injury, mandamus will be awarded; but the writ will not be granted, when full and adequate relief can he had by appeal, writ of error or otherwise. Wilson v. Duncan, 114 Ala. 659; Ex parte Tower Man. Co., 103 Ala. 415; Ex parte Hayes, 92 Ala. 120.

In the city court of Talladega, in the cause of Mary J. Adair et al. v. H. W. Phillips et al., the petitioner, S. E. Woodruff, being a party defendant, filed her answer as a cross-bill under the statute, to which her ‍‌​​‌‌​​‌​‌​​​​​‌​​‌​​‌‌​​‌​​​‌‌​​‌‌​​​​​‌‌​‌​​​‌‍adversaries demurred, and filed a motiоn to dismiss for want of equity. The motion to dismiss for want of equity was *101granted, and the cross-bill was dismissed out of court. The petitioner now moves this court for a writ of mandamus to the judge of the city court of Talladega requiring him to set aside ‍‌​​‌‌​​‌​‌​​​​​‌​​‌​​‌‌​​‌​​​‌‌​​‌‌​​​​​‌‌​‌​​​‌‍and vacаte the said decree dismissing her said cross-bill.

The petition is offensive to the rule upon which this court proceeds in awarding this writ. It asks us to control the judicial action of an inferior court and to set aside a decreе which it had full authority and jurisdiction to render, and this, when the petitioner has a full аnd adequate remedy to correct, on appeal on the final determination of the cause, any error which the lower court may have committed in rendering said decree.

¡Section 720 of the Code prоvides, that “A defendant may obtain relief against a party complainant or defendant for any cause connected with or growing out of the bill, by alleging in his answer, and as a part ‍‌​​‌‌​​‌​‌​​​​​‌​​‌​​‌‌​​‌​​​‌‌​​‌‌​​​​​‌‌​‌​​​‌‍thereof, the facts upon which such relief is prayed. The matters or facts thus alleged and put in issue must be considerеd in the nature of a cross-bill, and be heard at the time of the original bill.”

In Ex parte Thornton, 46 Ala. 384, this cоurt, by Peters, J., construed this statute, holding that it did not permit such a cross-bill to be heard, whether on demurrer (as in that case) or upon the merits earlier than the hearing of the original bill, and that its purpose was to keep the crоss-bill in court until the original bill is heard. We are constrained to depart from thаt ruling as not being justified either on principle or on the words of the statute itself. We discover no reasons against, but many in favor of, allowing a cross-bill to be tested by demurrer or motion to dismiss for want of equity, at any time after it is at issue, and the statute does not forbid such a procedure. It is “the matters or facts” put in the issue by the answer, considered in the nature of a cross-bill, that are to be heard at the same time as the original bill. But these matters or fаcts should be so presented as that the cross-bill shall contain equity and nоt be subject to demurrer, so that the defendants therein may safely take issue thereon. The object of this provision is, that the cause shall not be triеd on its merits piecemeal, multiplying the decrees to be rendered, but to have *102the same adjudicated on the merits between all the parties and on all tbe issues at one and the same time. Such a provision is perfectly consonant with the practice of allowing the ‍‌​​‌‌​​‌​‌​​​​​‌​​‌​​‌‌​​‌​​​‌‌​​‌‌​​​​​‌‌​‌​​​‌‍cross-bill, like аny other bill, to be tested before the final hearing by demurrer or motion to dismiss, and is as justifiable and defensible in the one as in the other case.

The mandamus prayed for must be denied.