State ex rel Crow v. Crook

| Ala. | Nov 15, 1898

DOWDELL, J.

The petition for mandamus was addressed to the Hon. Geo. E. Brewer, Judge of the Seventh Judicial Circuit, and the prayer of the petition ivas for the “alternative writ and for a -rule nisi.” This preliminary writ was granted by the judge and made returnable before him as such in vacation, and on the day to Avhich the writ was made returnable, the judge proceeded to a hearing and rendered judgment in the cause. From this judgment the present appeal is prosecuted to this court.

At the common laAv the writ of mandamus could only be granted by the court and returnable to the court, and Avas never awarded by ,a judge in vacation. — Em parte Grant, 6 Ala. 91" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/ex-parte-grant-6502113?utm_source=webapp" opinion_id="6502113">6 Ala. 91. The statute, (section 921 of the Code), authorizes judges of the circuit courts, “to grant Avrits of certiorari, supersedeas, qibo toarranto, mandamus, and all other remedial and original Avrits which are grantablé by judges at- common law.” The 'statute is silent as to the return of such writs. Subdivision 2 of the same section, Avhich authorizes circuit judges to grant writs of injunction and ne emeat directs that such writs be returnable into the chancery courts. The authority to grant writs of mandamus does not confer the jurisdiction and power upon the judges of the circuit courts, as judges, to try and determine the cause. If the statute was susceptible of such construction, then with equal propriety it could be said that judges of the circuit omi-L- could, as such judges, in vacation, hear and determine proceedings in quo toarranto, as -the statute authorized them to grant this writ, a proposition no one Avould contend for. And likewise as -to writs of certiorari. Section 2825 of the Code, which provides for and regulates the pleadings in -proceedings by mandamus, also provides that “the court shall award the relief, if any, to which the petitioner is entitled.” - It is the court and not the judge,-t\\&t hears and determines the cause, and awards the relief. Section 2827; which -provides for an appeal, is as follows: “From the final -judgment of any circuit court or other court■ exercising the jurisdiction of such court, in any such proceeding, an appeal shall lie. to the supreme court as-in other cases,” etc. (The italics are ours.) Section 2833 of the same chapter relating to mandamus ■ and other writs, provides that: • “The common law, as now in force in this State, touching any of the matters embraced in this chapter, is not repealed, but left in full force,” etc.

In Chapter 8 of the Code, which relates to appeals in general from judgments, orders, and .decrees, will be found section 431, wherein provision is made for appeals from judgments of judges of the -circuit and city courts on application for writs of certiorari, supersedeas, quo toarrcinto, mandamus, and other remedial writs etc. It was not the purpose of this statute to confer any additional power or authority on judges, which did not already exist independent of it. It is a statute giving the right of appeal, and only such judgments are intended as the judge had the power to render on application for the writs mentioned therein; such for instance as a refusal to grant the writ -of quo wa/rranto, or cértiorwi, or the preliminary writ of rule nisi for a mandamios. The judge having the power under the statpte to grant the preliminary or alternative writ, from his denial on application to grant such preliminary writ an appeal would lie under the above section.

Moreover, obedience to the peremptory writ of mandamus is enforceable by attachment against the respondent, and' the imposition of a fine or-imprisonment for contempt, a power not conferred by the statute upon judges as such. To hold that section 921 conferred upon circuit judges the power to award a peremptory writ of mandamus, would be to confer an authority withQut the additional power of enforcing obedience to that authority.

We find nothing in the statute to change the rule of the common law as to the return of the preliminary writ of rule nisi, and as the same is returnable to the court in term time and not before the judge in vacation, the proceedings had before the judge in this case in vacation on the return of the writ, were wholly 'unauthorized by law. The judgment therefore is a nullity, and will not support an appeal. The appeal being unauthorized by law, this court is without jurisdiction of the subject matter, and as jurisdiction cannot be conferred even by consent, it follows that the appeal must be dismissed.—Nabors v. Morris, 103 Ala. 543" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/nabers-v-morris-mining-co-6515743?utm_source=webapp" opinion_id="6515743">103 Ala. 543; Clark v. Spencer, 80 Ala. 345" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/clark-v-spencer-6512533?utm_source=webapp" opinion_id="6512533">80 Ala. 345; Throne-Franklin Shoe Co. v. Gunn, ante p. 640.

In line with the view we have expressed above as to the jurisdiction of the circuit judge to hear and determine writs of mandamus in vacation, see Ex parte Booth, 64 Ala. 312" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/ex-parte-boothe-6510536?utm_source=webapp" opinion_id="6510536">64 Ala. 312; Ramagnano v. Crook, 88 Ala. 450" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/ramagnano-v-crook-6513728?utm_source=webapp" opinion_id="6513728">88 Ala. 450.

Appeal dismissed.