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issue for the reason that mandamus or other evidence, we would hardly is not the proper
have time to meet the legitimate and Mandamas-to com pel allow- remedy. The mat- ever-increasing appellate work of
ter of obtaining this court. In connection with this inspection.
evidence by inspec- question, plaintiff's counsel have tion, or otherwise, is a matter that argued various propositions, which, may arise in any case, and thus may if the questions were properly bebe a matter incident to the ordinary fore us, would require attention. In course of procedure therein. If the view, however, of the conclusion
court errs in grant- reached that mandamus is not the Appeal-refusal ing or refusing in- proper remedy, we refrain from of inspection.
spection, the party discussing and passing upon these aggrieved may preserve his excep- propositions. We are clearly of the tion to the court's ruling, and may opinion that, upon the second
, present it to this court on appeal branch of the application stated after final judgment. It may be, above, mandamus is not the proper however, that the party who feels remedy. aggrieved at the time the ruling is It is, therefore, ordered that made may, nevertheless, be well sat- peremptory writ of mandate issue, isfied with the result ultimately requiring the District Court of Carreached by the court. In such mat- bon County to vacate its order or ters, while the ruling of the court judgment dismissing the
the action may, in some instances, cause a re- against the Company, and to reintrial of the case, and thus cause de- state the Company as a party delay in the ultimate determination fendant in the action, to the same of the litigation, it is not, like the extent as though no order of disother branch of this application, a
missal had been entered, and to prorefusal to proceed to try and de- ceed to try and determine all the termine the issues presented by the issues with regard to title, presentpleadings, and produces no more ed by the pleadings of the respecdelay or inconvenience than occurs tive parties, whether legal or in actual practice almost daily. If equitable, and to make such final writs of mandate could be obtained disposition upon the merits of such every time a court refuses to order issues, and to enter such judgment the production of some evidence
or judgments, as to the court may deemed material and relevant by seem just and proper. Plaintiff to one of the parties to an action, or
recover costs of this proceeding. every time a court refuses to grant Straup, Ch. J., and McCarty, J., inspection of certain documentary concur.
Inadequacy of remedy by appeal or writ of error as affecting right to man.
damus to inferior court.
1. General rule, 633. II. Exposition of rule, 633. III. Illustrative applications, 639.
On the question of mandamus to compel an inferior court to proceed with a cause, or assume jurisdiction thereof, where it has erroneously refused to do so for supposed lack of jurisdiction, see note to State ex rel. Martin v. Superior Ct. ante, 582.
On mandamus to compel a court to
take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency of service, see note te Speckert v. Ray, ante, 610.
On mandamus to compel a court to reinstate or proceed with the hearing of an appeal that it has erroneously dismissed, see note to Floyd v. Sixth Judicial Dict. Ct. post, 6!
Cases in which it appears that there was no remedy at all, by appeal
or writ of error, are not within the Wayne County V. Wayne Circuit scope of the annotation, whether man- Judges (1895) 106 Mich. 166, 64 N. W. damus was or was not issued, the ade- 42; Dillon v. Shiawassee Circuit Judge quacy of the remedy being the subject (1902) 131 Mich. 574, 91 N. W. 1029; under investigation. There are num- Luther v, Kent Circuit Judge (1908) berless cases holding or assuming that 151 Mich. 71, 114 N. W. 673. the remedy by appeal or error was Missouri. Hall v. County Ct. adequate in the particular instance, (1858) 27 Mo. 329; State ex rel. Schonand denying mandamus on that hoff v. O'Bryan (1890) 102 Mo. 254, ground. The present note, however, is 14 S. W. 933. confined to cases holding the remedy Montana. State ex rel. Montana by appeal or writ of error inadequate. C. R. Co. v. District Ct. (1905) 32 I. General rule.
Mont. 37, 79 Pac. 546.
Texas.—Terrell v. Greene (1895) 88 The general rule that mandamus
Tex, 539, 31 S. W. 631; GULF, C. & S. will not be allowed to compel action
F. R. Co. v. MUSE (reported herewith) by an inferior court, when the appli- ante, 613. cant has, or could have had, an ade
Utah. People ex rel. Pace v. Van quate remedy by appeal or writ of
Tassel (1896) 13 Utah, 9, 43 Pac. 625; error, must be understood to relate to
KETCHUM COAL Co. v. DISTRICT CT. a specific and adequate remedy.
(reported herewith) ante, 619. United States.—North Alabama De
Washington.-State ex rel. Jeffervelopment Co. v. Orman (1896) 18
son County v. Hatch (1904) 36 Wash. C. C. A. 309, 30 U. S. App. 646, 71 Fed.
164, 78 Pac. 796; State ex rel. Nash v. 764.
Superior Ct. (1914) 82 Wash. 614, 144 Alabama.-(A remedy which will
Pac. 898. place the complainant in the same sit
Wisconsin State ex rel. Fourth uation as he was before the act of
Nat. Bank v. Johnson (1899) 103 Wis. which complaint is made.) Etheridge
591, 51 L.R.A. 33, 79 N. W. 1081; State v. Hall (1838) 7 Port. 47; Ex parte
ex rel. Mitchell v. Johnson (1899) 105 King (1855) 27 Ala. 387; First Nat.
Wis. 90, 80 N. W. 1104. Bank v. Cheney (1898) 120 Ala. 117, 23 So. 733; Ex parte Watters (1913)
II. Exposition of rule. 180 Ala. 523, 61 So. 904.
In Ingram v. Alabama Power Co. California. Merced Min. Co. v. (1917) - Ala. —, 75 So. 304, the court Fremont (1857) 7 Cal. 130, 7 Mor. said: “It has been definitely settled Min. Rep. 309; San Francisco Gas & by this court that the proper and apE. Co. v. Superior Ct. (1908) 155 Cal. propriate practice is to appeal from 30, 99 Pac, 359, 17 Ann. Cas. 933; Hill orders, judgments, or decrees which v. Superior Ct. (1911) 15 Cal. App. deny or refuse applications for rehear307, 114 Pac. 805.
ing made under the four-months' statLouisiana.-State ex rel. Murray v. ute, because such order or judgment Lazarus (1884) 36 La. Ann. 578; State is final, disposing of the application ex rel. New Orleans v. Judge of Divi- and the judgment sought to be set sion B, Civil Dist. Ct. (1900) 52 La. aside; but, if the application to set Ann. 1275, 51 L.R.A. 71, 27 So. 697; aside the judgment and grant a reState ex rel. Rogers v. Parsons (1907) hearing is erroneously made, the order 119 La. 955, 44 So. 795.
is not final, because it does not disMichigan.-People ex rel. Port Hu- pose of the case, but restores it to the ron & G. R. Co. v. Judge of St. Clair docket for a new trial. In such case Circuit (1875) 31 Mich. 456; People there is no judgment to support an apex rel. Townsend v. Cass Circuit peal, and hence errors (if such have Judge (1878) 39 Mich. 407; Tawas & intervened) could not be reviewed or B. C. R. Co. v. Circuit Judge (1880) 44 corrected on appeal. This being true, Mich. 479, 7 N. W. 65; Van Norman the proper and appropriate practice v. Circuit Judge (1881) 45 Mich. and remedy are by mandamus to com204, 7 N. W. 796; Detroit v. Hosmer pel annulment of improper orders, and (1890) 79 Mich. 384, 44 N. W. 622; restoration of the judgment or decree
erroneously set aside, thus preventing substitute for an appeal, and in fact a rehearing or a new trial."
accomplishes with greater expedition So, in First Nat. Bank v. Cheney the same result, viz., the correction (1898) 120 Ala. 117, 23 So. 733, the of judicial error. No reason can be court said: “The case comes before suggested why such judicial action the court, primarily, on an application can be reviewed on appeal only upon a for a mandamus to compel the judge bill of exceptions, and yet on mandaof the city court of Anniston to enter mus may be reviewed upon the ex an order dismissing a suit commenced parte recitals of a mere petition. And, in that court by A. D. Cheney against indeed, it has been expressly held that, the First National Bank of Anniston, upon a mandamus petition to review and to vacate an order which had been the alleged erroneous judicial action entered, overruling a motion for a of an inferior court, the petitioner dismissal. At the time of the com- must reserve a bill of exceptions, in mencement of the suit, Cheney was the absence of which the case is not a nonresident of the state, and failed properly presented for the considerto give security for the costs of suit. ation of this court, even though the If the neglect to give the security re- respondent admit by his answer the quired the dismissal of the suit, man- verity of the facts recited. Ex parte damus is an appropriate remedy to Smith (1881) 69 Ala. 528; followed in compel it; though on appeal, after Ex parte Blalock (1896) 115 Ala, 692, final judgment against the defendant, 22 So. 998." the refusal to dismiss, if properly pre- And in Merced Min. Co. v. Fremont sented, would be error available to (1857) 7 Cal. 130, 7 Mor. Min. Rep. reverse the judgment. As a general 309, where an injunction had been rule, it is true that mandamus will not disobeyed during the time an appeal be granted for the correction of an therefrom was pending, and the inerror arising in the progress of a suit, ferior court had refused to issue an which can be revised on appeal after attachment for contempt, the court final judgment. Ex parte Elston said: “It would seem clear that, if (1854) 25 Ala. 72. But the appeal the injunction was not affected by must be an adequate remedy. It must the appeal, there must be some remedy be capable of protecting parties from for its violation pending an appeal; the injury immediately resulting from for if there be no remedy for the the error of the court. Merrill, Man- wrong, the right injured does not damus, § 201. While the error in re- exist. No right can exist, in contemfusing a dismissal for want of secur- plation of law, that cannot be injured, ity for costs may be available on error and there can be no injury without a for the reversal of a judgment, obvi- remedy. Where, then, can this remedy ously an appeal is not an adequate be found, but in the district court? remedy. The citizen is compelled into That court must protect the parties litigation with a nonresident, pending in their substantial rights. As to the the further continuance of the suit
other question, whether the remedy is and the appeal, without indemnity by mandamus or appeal, we think there against the costs,—the evil the statute
can be but little doubt. The remedy intends to avoid. Hence, it has been
by appeal is too slow, and is not adethe uniform course of decision that
quate. The duty to be performed is mandamus is an appropriate remedy
fixed by law, and certain. As to how to compel the dismissal of such suit.
that duty is to be performed, this Ex parte Cole (1856) 28 Ala. 50; Ex
court will not direct. All we can do parte Robbins (1856) 29 Ala. 71; Ex
by this writ is to direct the judge to parte Morgan (1857) 30 Ala. 51."
exercise his discretion in inquiring And in Ex parte Watters (1913) 180
into the acts charged, and rendering Ala. 523, 61 So. 904, the court said: his decision upon them. The decisions “When it is sought to review and cor- of this court have fully settled some rect such rulings by mandamus, the these points. People ex rel. Smith proceeding is merely an emergency v. Olds (1852) 3 Cal. 167, 58 Am. Dec.
398; People ex rel. McDougall v. Bell denial of justice. Where a clear case (1854) 4 Cal. 177; Russell v. Elliott for an injunction is presented, it is (1852) 2 Cal. 245."
the duty of the judge to grant the In State ex rel. Murray v. Lazarus relief. He has then no more discre(1884) 36 La. Ann. 578, the court said: tion to exercise than when seasonable “Referring to that Code, the wise pro- application is made and a proper bond visions of which have long slum- tendered for an appeal in an appealbered, we find it distinctly stated that
In such a case it is manithe object of the writ of mandamus fest that justice and reason require is to prevent a denial of justice; that that some mode should exist of rethe writ should, therefore, be issued dressing at once the wrong or the where the law has assigned no relief abuse of power on the part of the disby the ordinary means, and where trict judge, even if there be other justice and reason require that some means of relief, or the slowness of mode should exist of redressing a ordinary legal forms would produce wrong, or an abuse of any nature such a delay that the administration whatever. It arises, says the Code, of justice may suffer from it. On this at the discretion of the court, even branch of the case, we, therefore, conwhere a party has other means of re- clude that this court has jurisdiction lief, if the slowness of ordinary legal to issue a mandamus to compel a disforms is likely to produce such a delay trict judge to allow an injunction in that the administration of justice may limine, whenever a proper state of suffer from it. Code of Practice, arts. facts is presented and all the require830, 831. In cases like the present ments of the law have been complied one, in which an injunction was re- with. In such case, this court may fused in limine, after hearing on a grant a restraining order which will rule nisi, it has been held that an ap- operate, provisionally, as the injuncpeal lies; but it has never been de- tion asked, but declined, would have cided that such an appeal, even if al- done had it been allowed. But it does lowed as a suspensive one, would not follow that, because this court has operate as the desired injunction such power to interpose its authority would have done, had it been granted. in cases of emergency and denials of Indeed, it is hard, not to say impossi- justice, it will thus interfere, whatble, to conceive how a suspensive ever be the case presented. It will appeal from a decree refusing an in- issue the writ in its discretion, acjunction can produce the effect of pre- cording to the exceptional features venting the act which the injunction of each case submitted. In the pressought would have arrested had it ent instance, the district judge has been allowed. It would be highly adduced satisfactory reasons, resting dangerous to the administration of both on an absence of facts and a conjustice to give to an appeal from an sideration of the law, for refusing the order refusing an injunction the ef- injunction asked, which are, substanfect of preventing the act which the tially, that the petition is deficient, as injunction, if issued, would have ar- it discloses no cause of action. We rested, for in all cases in which an do not propose to elaborate those reainjunction would be declined, even
sons which are indicated in the beginrightfully, lawful acts would be in- ning of the opinion, and which we variably suppressed. No doubt an ap- deem amply sufficient to exonerate the peal lies, but, if termed suspensive, it respondent from the charge of an aris barren of effect in that sense. So bitrary, illegal, and wrongful denial that if there be a remedy, it is not an of justice." adequate one, and, if a party entitled In Tawas & B. C. R. Co. v. Circuit to an injunction is refused the same, Judge (1880) 44 Mich. 479, 7 N. W. 65, he remains with a right, but without the court, in issuing a mandamus to a remedy,-at the mercy of a district compel an inferior court to dissolve judge,-unless this court can interfere an injunction, said: "The jurisdicand relieve him from the effect of a tion of this court in mandamus cases
is not statutory, but plenary, and su- case, the whole business of the corpervision is given over all inferior poration is stopped unless the comtribunals by the Constitution. Art. 6, pany submits to conditions which the § 3. Under the Constitution, legal and court has no power to impose. If the equitable jurisdiction is united in the officers disobey the writ they have to circuit courts, and it is enjoined that decide for themselves whether it can distinctions between the two juris- safely be done, and few persons are dictions shall be removed as far as willing or should be compelled to act possible. $ 5. In granting this rem- under such a pressure.
An appeal edy, courts are always disposed to con- always involves considerable delay, fine it to cases where there is no oth- and during the interval there is room er adequate specific remedy. But the for new controversies. existence of a remedy of another na- therefore, is urgent, and, as there is ture which is not adequate furnishes no doubt of the illegality of the order no reason for refusing it, if the ne- complained of, it should not be concessity of justice requires it. We had tinued to menace the persons engaged occasion in People ex rel. La Grange in the enterprise. They should not be Twp. v. State Treasurer (1872) 24 driven to the alternative of seeming Mich. 468, to consider this jurisdic- to defy the authority of the courts. tion quite fully, and we think the We think a mandamus is a proper remviews there expressed are in accord- edy, and should be granted, with costs ance with the soundest authority, against the complainants in chancery."
. Mandamus is a prerogative writ, de- In Detroit v. Hosmer (1890) 79 signed to afford a summary and spe- Mich. 384, 44 N. W. 622, the court cific remedy in those cases where, said: "Whether mandamus is the propwithout it, the party will be subjected er remedy to remove an injunction to serious injustice. As pointed out which ought not to stand depends enby the eminent authorities there cited, tirely on the conditions of its issue. it is, from its very nature, a remedy Usually, if the mischief can be as well that cannot be hampered by any nar- settled by appeal, that is the proper row or technical bounds. The right, resort. But we have held on several coupled with the necessity, of such a occasions that where a preliminary vindication of it, supports the juris- injunction operates in such a way as diction, and the court, in using its to do violence to vested rights and indiscretion, while careful not to use terests, and to prevent the proper authis writ when it is not essential, will thorities from exercising their legal apply it where it is. As the English functions, it is such an invasion of chancery was not inferior to the right as entitles the aggrieved parties King's bench, that is reason enough to a prompt redress, which, as decided why there are no precedents for the in those cases, is better for the public writ in chancery cases. But, as ex- peace and order than encouraging an plained in the cases just cited, it is open disregard of the legal tribunals, well settled that the existence of a where it can be avoided. While the specific remedy in equity does not oust action of an inferior court, within its the legal jurisdiction, but only appeals discretion, is to be reached by other to the discretion of the common-law appellate process, yet, when the action court. Mr. Spence, in his treatise on complained of is beyond any proper Equitable Jurisdiction, refers to the
discretionary power, or is an abuse of jurisdiction in mandamus one discretion which cannot be justified which, if freely exercised, might have on legal principles, this court may and rendered much of the interference of will interfere by mandamus, if there equity needless. 1 Spence, Eq. Jur. is urgency, or pressing occasion to do 704. In a majority of cases the usual
so. In Port Huron & G. R. Co. V. remedies are sufficient, and the neces- Judge of St. Clair Circuit (1875) 31 sary delays attending them are not Mich. 456, it was held that an attempt so serious as to require any extraor- by ex parte action to devest a board of dinary remedy. But, in the present directors of a corporation of their