556 So. 2d 390 | Ala. Civ. App. | 1989
This case involves a petition for writ of mandamus.
Petitioner filed a motion for order of attachment in the circuit court in response to the failure to appear at a scheduled hearing of two subpoenaed witnesses. The trial court denied petitioner's motion of attachment on the authority ofClark v. State ex rel. Williams,
"Attachments of absent subpoenaed witnesses are still authorized in criminal cases by §
12-21-182 of the Alabama Code, but, as to civil cases, that code section is superseded by Rule 45(f), Alabama Rules of Civil Procedure, which adopted the federal rule that authorizes contempt proceedings for the failure of a person to obey a subpoena served upon him."
Although the above quoted language indicated that Rule 45(f) superseded §
"Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued." (emphasis added)
A.R.Civ.P., Rule 45(f).
Our conclusion is further supported by the fact that the predecessor section to *392
§
Finally, we note that in the case of In re Tarpley,
We now consider whether to grant the writ or to deny it. The extraordinary writ of mandamus should not be issued absent a finding that petitioner's right to relief is clear and, further, that no other adequate remedy exists. Ex parteRogers,
In short, mandamus will not issue to compel the trial court to exercise its discretion in a particular manner; however, it will issue to compel the circuit court to exercise its discretion. Ex parte Adams,
The right of the trial court to compel a witness by attachment is not an absolute and unqualified right, but rather is a matter within the trial court's discretion. Lyons v.Lyons,
Consequently, because the trial court's order denying the motion for attachment reflected its opinion that the remedy of attachment was unavailable, the writ is granted for the limited purpose of compelling the trial court to exercise its discretion concerning the propriety of the attachment of the witnesses.
WRIT GRANTED.
INGRAM, P.J., and RUSSELL, J., concur. *737