76 Ala. 321 | Ala. | 1884
— There is, in this case, a joinder in error, and a submission of the cause on briefs of counsel, without any motion to dismiss the appeal, or to reject the transcript. We will not consider any question of the regularity, either of the appeal, or of the certified record sent up for review. — 1 Brick. Dig. 103, §§ 289, 290.
An application was made in the Circuit Court for a mcmdamus, to compel the clerk of Marengo Circuit Court to approve an amended attachment bond, tendered in the case of appellant v. Askew Brothers. The clerk had refused to approve the bond tendered. There was a demurrer to the petition for mandamus, which the circuit judge sustained. From that ruling the present appeal is prosecuted.
It is contended for appellee, that, in refusing to approve the bond tendered, he acted in a quasi judicial capacity — did only what was confided to his judgment and discretion — and that his judgment and decision can neither bo controlled nor reviewed in the manner here proposed. If this record presented only the question of a bond tendered to the clerk for his approval. and his refusal to approve it because he deemed the sureties insufficient, or for no assigned reason, the argument
If, however, the clerk refuses to consider the sufficiency of a bond tendered for his approval, either for no reason,-or for an assigned insufficient reason, mandamus will lie; not to compel him to approve the bond ; that is a matter for his own enlightened judgment: it will lie, to compel him to consider and pronounce on the sufficiency of the bond. This involves an inquiry into its form, whether it is in proper penalty and condition,'¡s-ud whether the sureties tendered are sufficient. This 'is a duty cast on him, which he alone can perforin, and suitors who may be required to give such bonds, have the clear legal right to demand its exercise. — Gulick v. New, 14 Ind. 93 ; Moses on Mandamus, 61.
The bond required in this case was ffi, a suit pending in Marengo Circuit Court. The sureties offered'were residents of Mobile county in this State. The petition for mandamus avers, that, after the clerk had considered the matter for several days, he “declined and refused to approve the said bond, solely lie-cause the said bond is not signed by a solvent resident eff Marengo county, and [the clerk] admits that in all other respects he considers said bond sufficient.” The case was tried in .the court below on the written admission of the clerk, that the averments of the petition were true, with certain exceptions; not at all impairing or affecting the averment copied above. There is no law in this State, requiring that sureties on an attachment bond shall be resident in any particular county; sufficient if they reside in any part of the State, if otherwise sufficient. The clerk, therefore, was not authorized to make residence in Marengo county one of the conditions of his approval of the bond. It follows that the clerk has not considered, but has declined to consider the sufficiency of the bond, in the sense the law contemplates and allows. The petitioner is entitled to a mandatory order, requiring the clerk to consider and pass'upon the sufficiency of the bond offered, without reference to the county or counties of this State, in which the bondsmen reside; and if, upon being properly certified of this order, the clerk refuses or fails to consider and pass upon the sufficiency of the bond, in the manner above directed, a mandamus will be awarded, directing and requiring him to do so.
The special prayer for relief in this case is, that the clerk be commanded to approve said bond. This we can not grant. There is, however, a prayer for general relief, under which we make the order above set forth.
