Southern Railway Co. v. Walker & Minge

132 Ala. 62 | Ala. | 1902

Lead Opinion

DOWDELL, J.

— The appeal in this case is taken from the order of the judge réfusing the petition of mandamus. It appears from the record that the. appellees,’ Walker & Minge, a partnership, recovered a judgment in tbe justice court against tlie appellant in an action commenced in that court by summons and complaint, and that the defendant, after judgment and execution issued thereon, filed and obtained a common law writ of cer-tiorari removing the proceedings into the circuit court of Marengo county; that subsequent to the removal of the proceedings upon the writ of certiorari, the plaintiffs, Walker & Minge, made a motion in vacation to dismiss their cause of action then pending in the circuit court under the certiorari proceedings, and that the clerk of said court, acting on said motion, entered an order upon the docket, granting the same and dismissing the suit. All this occurred prior to the Spring term 1900, of the circuit- court of Marengo county. At the Fall term, 1900, of said court, the appellant, the Southern Railway 'Co., -defendant in said action, made a motion in -said court, to annul and set aside the order of the -clerk of said court dismissing said cause and to require said clerk to state said cause upon the docket in said court. It appears further from the record that said motion was heard and considered by said circuit court and the same was -denied. Thereupon the appellant, the Southern Railway Company, made application by petition in writing to the Hon. John O. Anderson, judge of said circuit court, for a wirit of mcmclamus directing the clerk of said circuit court to state said cause upon the docket in said court, which application was refused by said John C. Anderson, circuit judge; and it is from this order refusing and denying the petition that the present -appeal is- prosecuted.

The writ of mandamus is an extraordinary remedy, and as a general rule can only be resorted to in the absence of other legal remedies, and can .never be resorted to where the party seeking the same may obtain relief by an appeal. Again, it may be laid down as a universal rule, that all courts have control of their processes, and of their officers whose -duty it is to issue process, or to perform other clerical duties in-the administration of the law in said courts'. We think there can be no doubt that it was -clearly within the power and control of the circuit court, upon a motion made to tbe court by a party for tbe purpose, to' order and direct its clerk in regard to tbe statement or causes upon tbe docket in said court. Tbe motion ¡that was made by tbe appellant here, before said court to require the-clerk to put upon tbe docket tbe cause wbicb bad 'been by him dismissed in vacation, was tbe proper remedy, and upon a bearing of said motion, tbe denial of tbe same by tbe court was sueb a judgment as would Support an appeal to this court. This motion having been beard and determined by tbe court and denied to tbe appellant, his remedy was by appeal, and not by petition, to tbe judge for a writ of mandamus to compel tbe clerk to do what tbe very judge to whom tbe writ ¡s addressed, sitting as a court, had refused to order. It is clear to us, upon tbe record, that this is not a proper case for proceeding by mandamus, and tbe judge committed no error in denying said petition. Tbe question as to whether the court committed an error in overruling tbe motion to require tbe clerk to state said cause upon tbe docket is not before us for consideration on tbis appeal, and, therefore, we express no opinion on tbe same.

Let tbe judgment be affirmed.

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Dissenting Opinion

■Sharpe, J.,

dissenting, is of the opinion that tbe petitioner is entitled to tire remedy sought.