Ex Parte Tyler

Alabama Court of Appeals

Ex Parte Tyler

81 So. 853, 17 Ala. App. 75, 1919 Ala. App. LEXIS 96

CourtAlabama Court of Appeals

DecidedMay 6, 1919

Docket6 Div. 561.

StatusPublished

This text of 81 So. 853 (Ex Parte Tyler) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Tyler, 81 So. 853, 17 Ala. App. 75, 1919 Ala. App. LEXIS 96 (Ala. Ct. App. 1919).

Pincite

Opinion

PER CURIAM.

The merits of the#case as presented by the petition for rehearing were considered and sustained on the appeal from the judgment of the trial court sustaining demurrers to that petition as amended and dismissing the same. Williams v. Tyler, 14 Ala. App. 591, 71 South. 51; Ex parte Tyler (Sup.) 73 South. 1002. 1 After the remandment of the cause on that hearing, the point was made by proper motion that the case had been discontinued by dropping the case from the docket and the failure of the court to make proper orders -of continuance therein; but, in view of the agreement recited in the bill of exceptions, to the effect “that the general order of continuance from time to time had been made at the proper and regular time in this ease,” it is' manifest that this position has been abandoned. After the motion above stated was overruled by the trial court, the defendant filed a general denial of the averments of the petition, and the proof was taken, and the court granted the prayer of the petition, entered an order setting aside the former judgment, and restored the case to the docket for retrial. TJie purpose of this petition is to review that order, and, after careful consideration of the proof in support of the petition for rehearing, which is set out in full and made a part of the petition for mandamus here, the opinion prevails that the proof, without material conflict, sustains the petition for rehearing, and that the trial court made and entered the correct order in the case. In other words, the petition for mandamus on its face failing to make a ease entitling the petitioner to relief, the issuance of a rule nisi would be a useless procedure, and the motion, therefore, will be denied, and the petition dismissed. State ex rel. King v. Pearce, Judge, 14 Ala. App. 628, 71 South. 656.

Motion for rule nisi denied and petition dismissed.

1

198 Ala. 696.

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PER CURIAM.

The merits of the#case as presented by the petition for rehearing were considered and sustained on the appeal from the judgment of the trial court sustaining demurrers to that petition as amended and dismissing the same. Williams v. Tyler, 14 Ala. App. 591, 71 South. 51; Ex parte Tyler (Sup.) 73 South. 1002. 1 After the remandment of the cause on that hearing, the point was made by proper motion that the case had been discontinued by dropping the case from the docket and the failure of the court to make proper orders -of continuance therein; but, in view of the agreement recited in the bill of exceptions, to the effect “that the general order of continuance from time to time had been made at the proper and regular time in this ease,” it is' manifest that this position has been abandoned. After the motion above stated was overruled by the trial court, the defendant filed a general denial of the averments of the petition, and the proof was taken, and the court granted the prayer of the petition, entered an order setting aside the former judgment, and restored the case to the docket for retrial. TJie purpose of this petition is to review that order, and, after careful consideration of the proof in support of the petition for rehearing, which is set out in full and made a part of the petition for mandamus here, the opinion prevails that the proof, without material conflict, sustains the petition for rehearing, and that the trial court made and entered the correct order in the case. In other words, the petition for mandamus on its face failing to make a ease entitling the petitioner to relief, the issuance of a rule nisi would be a useless procedure, and the motion, therefore, will be denied, and the petition dismissed. State ex rel. King v. Pearce, Judge, 14 Ala. App. 628, 71 South. 656.

Motion for rule nisi denied and petition dismissed.

1

198 Ala. 696.

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Bluebook (online)

81 So. 853, 17 Ala. App. 75, 1919 Ala. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-tyler-alactapp-1919.

Opinion

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