107 So. 448 | Ala. | 1926
The petitioners brought an action of ejectment in the circuit court against Frank Leslie, the defendant. The defendant then moved to have the cause transferred to the equity side of the docket under section 6490 of the Code of 1923 and which motion was granted over the objection of the plaintiffs. The defendant, having procured the transfer, became the actor or plaintiff on the equity side of the docket, and it was incumbent upon him under section 6491 to amend the pleading or file a complaint setting forth the equitable defense relied upon against the action of ejectment. Cornelius v. Moore,
We do not wish to be understood as holding that the statute requiring an amendment of the pleading within 30 days after the transfer is so mandatory as to deprive the trial court of some discretion in allowing further or additional time upon a proper showing or request, but here the answer offers no excuse for the default or delay and the record fails to disclose that further time was requested or granted. The transfer was made March 28th, and nothing whatever seems to have been done by the complainant up to and including the following 1st day of October, and we think that a failure of the trial court to grant the plaintiffs' motion for retransfer was, under the circumstances, in effect, an abuse of discretion.
The mandamus will be awarded directing a retransfer of the cause to the law side of the docket unless the trial court does so within a reasonable time.
The defendant made a motion to quash the writ of mandamus, relying upon the case of Longshore v. State, 34 So. 684,
Mandamus awarded.
SAYRE, GARDNER, and MILLER, JJ., concur. *199