Ex parte Hamilton

51 Ala. 62

Opinion

PETERS, C. J.

This is an application, for a writ of prohibition. The granting of such an application rests within the discretion of the court. It is not imperative. Ex parte Morgan Smith, 23 Ala. 94. Such a writ is only to be allowed, when its issuance is necessary to give a general superintendence and control of an inferior jurisdiction; and it is never to be resorted to, except in cases of usurpation or abuse of power, and not then, unless other remedies are ineffectual to meet the exigencies of the case. And authorities are not wanting, which declare that this writ should not be issued, in any instance, until the party who complains of the abuse of power shall have first sought redress in the inferior tribunal, and has failed to obtain it. Ex parte Greene & Graham, 29 Ala. 52.

In this case, the petitioner disobeyed an injunction issued by the chancellor in a suit pending before him; and on being served with notice to appear and answer for his contempt in violating the injunction, he seeks to restrain the chancellor from proceeding in the process for contempt, without first answering the bill, or moving in the court in which the bill is pending to dissolve the injunction. It does not appear that either of these steps .was taken in the chancery court, before the application here for an order to restrain the chancellor, nor that such motions would have been unavailing. Had there been a motion to dissolve the injunction on the coming in of the answer, or upon motion for want of equity, this would have afforded a sufficient remedy to the applicant if it appeared that he was entitled to relief ; because it is not to be presumed that, if the bill was destitute of equity, the injunction would have been sustained; and if it should have been dissolved, it is equally certain that there would have been no need to resist it. Besides, a bill is subject to be amended until the cause is ready to be heard, and the injunction may be retained, and such amendment might have obviated the present objections to the bill. Rev. Code, §§ 3355, 3356 et seq.; Bibb v. Shackelford, 38 Ala. 611; Boyd v. Anderson, 2 John. Ch. R. 202. Though, sometimes, an injunction will be retained to abide the determination of the cause, where the injunction, as in this case, is the chief purpose of the remedy sought by the bill. As a general rule, then, it is the safer practice to refuse a party, in contempt for the - violation of an injunction regularly issued, the aid of a writ of prohibition against the process for contempt for an alleged violation of such injunction, who has not appeared in the inferior court and submitted to the jurisdiction, by motion to dissolve the injunction, or to dismiss the bill for want of equity, or other defect of jurisdiction. There is an adequate remedy by such motions, which ought to be exhausted before a party can be allowed to defy the authority of the court by a contempt of its process regularly issued. A prohibition will not be allowed, until a party seeking it shows that he has sought to avail himself of the ordinary modes of relief incident to the cause, before he proceeds to set at defiance the process of the court. This has not been done in this case. The application is, therefore, denied with costs.