Hill v. Wittmeier

96 So. 327 | Ala. | 1923

The writ of prohibition is an extraordinary writ, and is only issued when the parties seeking it are without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal.

In Atkins v. Siddons, 66 Ala. 453, in speaking of this writ, the court said:

"It can never be invoked to prevent proceedings which are purely ministerial in their nature, but only those which are of a judicial character. The issue of an execution by a justice of the peace is a ministerial, not a judicial, act; and the writ of prohibition will not, therefore, lie to prevent its issue, however illegal or unauthorized, and whether such process be void or voidable."

To like effect, see State ex rel. Turner v. Bradley, 134 Ala. 549,33 So. 339.

The petition in the instant case discloses that the foundation therefor rests upon the alleged unlawful issuance of execution by the respondent Swann, justice of the peace of beat 12, Blount county. The Atkins Case, supra, is directly in point to the effect that such was a ministerial act for the prevention of which the writ of prohibition is inappropriate.

Moreover this court is presumed to judicially know the various commission officers, including justices of the peace, as well as the extent of their authority, when terms commence and expire. Cary v. State, 76 Ala. 78; Sandlin v. Anderson-Green Co., 76 Ala. 403; Lucas v. Boyd, 156 Ala. 427,47 So. 209.

For aught that appears in the petition, the execution issued by respondent Swann was merely an alias execution issued under the authority of section 4685 of the code of 1907, under a judgment rendered by his predecessor, and, indeed, the only attack upon this judgment is the fact that petitioner had not been served with any notice of the suit.

"Prohibition being an extraordinary remedy is only granted * * * in case of necessity; therefore the existence of another adequate ordinary remedy, or of a more appropriate extraordinary remedy, will make it the duty of the court to deny the writ." 2 Spelling on Extraordinary Relief, § 1727; Kelton v. Tavel, 174 Ala. 259, 56 So. 1021; Ex parte Smith,34 Ala. 455.

It would appear, therefore, that, under the facts as set forth in the petition, a bill for injunction is the more appropriate relief. McAdams v. Windham, 191 Ala. 287, 68 So. 51; Kelton v. Tavel, supra.

The demurrer to the petition was properly sustained, and the judgment will accordingly be here affirmed.

Affirmed.

McCLELLAN, SAYRE, and MILLER, JJ., concur.