Wilson v. Duncan

114 Ala. 659

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

HARALSON, J. —

1. The act creating the city court of Talladega confers on the said court all the authority, jurisdiction and powers within said county, which had been conferred, at the time of its enactment, or which might thereafter be conferred by law, on circuit or chancery courts of the State ; and upon the judge of said court, within the State and county, the same authority and powers, and the same duties as a circuit judge or chancellor has and performs, within the State and-within his circuit or division, &c. — Acts, 1892-93, p. 541.

Both city and circuit courts, having like jurisdiction in civil matters,, can issue writs to probate courts or probate judges, in all cases warranted by the principles and usages of law, and have the power-, “to exercise a general superintendence over all inferior jurisdictions.”' The State v. Williams, 69 Ala. 315; Towns v. The State, 111 Ala. 1; State v. Rodgers, 107 Ala. 444.

2. Section 417 .of the Code provided,' that when' a contest was begun for any office by a contestant, before the judge of probate, — as provided for in the Article of the Code of which said section was a part, — he “must, also, at the same time, give security for the’ costs of such contest, to be approved by such judge; but in no case shall such judge require security for more than five hundred dollars.” In this case, the judge of probate, acting bn the supposition that said section was still of force, and had not been repealed, required, and took-from the contestant a bond and security for costs according to its provisions, in the sum of $500.

The main contention in this case is, as - to -whether said section has been repealed or not. On February 10, 1893, the legislature passed an act,' entitled “An act to provide for and regulate contests of elections to offices, State and county-herein [therein]named.” — Acts,' 1892-93, p. 468. This'act, as it was intended, provided anew system for the contest of elections to offices in this State, and by number, expressly repéaled all the sections of the Oode from section- 396 to 434, inclusive, relating- to the-same subject. In the published acts, however, said section 417 does not appear as having been repealed, but, of all the sections in Articles I to VI inclusive, this one appears to have been left unrepealed. Much time, research and ai’gument of counsel on both sides, have been devoted, on the one side, to show that the said section has not been repealed, and that the legislature had no intention to repeal it, and on the other, that the provisions of the new law are inconsistent with it, and repealed it by implication, — the failure of the legislature to include it in the repealing clause of the act, being an inadvertence or oversight. All this contention, however, is put to rest by the examination of the enrolled act as* it appears in the office of the Secretary of State, in which said section is mentioned among the others which were repealed. Its omission-from the printed act was the result of mistake. The legislative record, of course, governs. — Jones v. Hutchinson, 43 Ala. 721; Moody v. The State, 48 Ala. 115 ; Moog v. Randolph, 77 Ala. 597 ; Henderson v. The State, 94 Ala. 95 ; Sutherland on Stat., § 28 ; Sedg. on Const. of Stat. Law, p. 55.

3. Section 3, subdivision 3 of said act of 1893 provides, “that at the time of commencing such contest, and of the filing of the said statement in writing, (the one required to be filed, setting forth the prescribed averments for a contest), the party contesting must give security for the cost of such contest, to be filed and approved as hereinafter provided.” Section 5 makes provision for the contest of the election of a senator or representative to the General Assembly; 6, for that of chancellor; 8, for judge of the circuit court; 9, for judge of probate, and as to each, the requirement is, that the contestant “must give good and sufficient security for the costs of such contest, ” to be approved by the officer designated.

In section 10, under which the contest in this case arises, the provision is, that the person contesting “must give good and sufficient security for the cost of such contest, to be approved by the said judge of probate. Such statement [of contest] having been filed, and security for costs given, the judge of probate must appoint a day for'the trial of such contest, and must order a summons to issue to the party whose election is contested, accompanied with a copy of the- said statement, requiring such party to appear and make answer:to such statement within five days after the service of such summons. And the said judge must appoint a day for the trial of such contest, not exceeding twenty days after the filing of the said statement,” &c.

Section 13 provides that, “In all cases, the person whose election is contested, if he be the successful party in such contest, is entitled to judgment for the cost thereof, against the party contesting and his sureties, for which execution may issue returnable to the court of probate, or to the court of chancery, or to the circuit court,” — in whichever court the contest may have been tried.

Section 3 of the act requires, “That when any elector chooses to contest, he must make a statement in writing setting forth specifically : (1) The name of the party contesting, and that he was a qualified voter when the election was held." (2) The office which said election was held to fill, and the time of holding the same. (3) The particular ground or grounds of said contest, which statement must be verified by affidavit of such contesting party, to the effect that the same is believed to be true,” &c.

From the foregoing recitals of the provisions of said act, it appears that two things are necessary to the proper institution of a contest proceeding under said statute : (1), that the statement provided for, shall be filed as required ; (2), “and at the time of commencing such contest, and of the filing of the said statement in writing, the party contesting must give security for the cost of such contest, to be filed and approved, ’ ’ as provided in each particular case. "Without a compliance with each of these provisions, in form at least, the judge before whom the contest is to be tried, has no right to proceed. The language of the statute, as applicable to the case in hand, is clear : “such statement having been filed, and security for costs given, the judge of probate must appoint a day for the trial of such contest,” &c. We need indulge no argument in support of a proposition which lies so open on the surface. :

4. The bond which was filed and approved in the case, was not the one required by the statute, and as for the due prosecution 'of the proceeding, without more, it was just the same as if no bond had been filed at all. If good, it was good as a common law, but not as a statutory, bond, — one on which the contestee, if successful, would, have to sue to recover costs, and then, the recovery would be limited to the amount of the penalty.— Hilliard v. Brown, 103 Ala. 318; Adler v. Potter, 57 Ala. 571. The bond required by this statute is for .the costs of the contest, not within prescribed limits, but -all. the costs, in unlimited amount, on which, at the conclusion of the trial, if 'favorable to contestee, a statutory judgment may be rendered against the contestant and his sureties. The legislature very well understood, that the cost of a- contest of this character, might exceed, many times,' the amount prescribed under the former law, and ■this was one of the defects,,existing under the old, proposed to be remedied under the new system.

5. On the day he was summoned to appear,—which was as early as he could do so,—the contestee moved the court to -dismiss' the contest, on the ground, among others, in. substance,.that the contestant had not given security for costs in the manner required by statute. This motion was overruled. Thereupon, the contestee moved the cour.t to require him to give another bond for all the costs of the contest, assigning as reasons therefo.r, the many grounds presented and urged for the dismissal ,of the cause; and this motion was overruled, and the contestee was required to try on the statement .filed and the security as given for the contest.

In Ex parte Morgan, 30 Ala. 51, it wasdield, that in a suit commenced by a corporation,, a bond for costs in the penal sum of $200, conditioned for the payment of such costs, “as may be adjudged against the plaintiff,” was not a compliance with the statute, which required a corporation, before commencing suit, to “give security for costs ;” and on failure to do so,, the suit, on motion of defendant, should be dismissed. In that case, on the question, whether the plaintiff, having given defective security, his suit should be dismissed absolutely, or he should be allowed to substitute new security, the court was divided. Afterwards, in Peavey v. Burket, 35 Ala. 141,—a similar case,—it was decided, that'inasmuch as the security given in the case, although • imperfect, was nevertheless given, before the suit was instituted, and appeared to have had for its object a compliance with the statute, the plaintiff should.be allowed to execute a new and sufficient security. This ruling was followed in the later case of Stribling v. The Bank, 48 Ala. 451.

In this state of case, the contestee applied to the judge of the city court of Talladega for a writ of mandamus, to the special' judge of the probate court, James B. Newman, to require him to set aside and vacate the judgments or decretal orders in respect, to - the security for costs in the case, and to require the contestant to give good and sufficient' security for costs of the contest, in default of which the same should-be dismissed, and commanding him otherwise to refrain from proceeding to hear and render judgment in the cause, no security for costs having been given in manner and form as required by law,. &c. A rule' nisi to said special judge'was-granted, in reply to which -he demurred to the - petition - on various- grounds, which demurrer was overruled'. Thereupon, the special: judge answered the same,setting forth the proceedings in their order,'admitting the'main facts of the petition, and insisting that the judgments rendered in the proceeding were according to law ; and whether so rendered or not, .they could not be properly revised or reversed on said application for mandamus. This answer was demurred to on several grounds, and the demurrer sustained. The respondent declining to plead further the rule nisi was made final, according to the prayer of the petition. •

6. The contestant, T. J. Wilson, appeals and assigns errors in the ruling of said judge on said mandamus. A motion is here submitted to dismiss the appeal, (1), because said Wilson was not a party to the suit below; and (2), in substance, that special probate judge, Newman, to whom said writ was directed, was the only party defendant in said proceeding} and he and movant, the contestee, constituted the only parties to said proceeding .and to said judgment rendered therein, from which the appeal' was prayed and taken by appellant, T. J. Wilson. ■

When the purpose of the writ is to secure the performance of an official duty by a public officer, it should be addressed to him in his official character, and it is not the practice to make any other persons parties -respondent, than the officer whose conduct is called in question. High’s Ex. Leg. Remedies, § 440 ; 14 Am. & Eng. Encyc. of Law, 289. It may be added, that persons not made parties to the suit below, are not permitted to bring a cause to this court by, appeal, nor. assign errors, as parties to the record. — Code of 1886, § 3611; May v. Courtnay, 47 Ala. 185 ; Reese v. Nolan, 99 Ala. 205.

It is sufficient to say, that this appeal is not properly before us in the name and on the prosecution of the contestant, Thos. J. Wilson, and the motion to dismiss the appeal must prevail. We will not attempt to say in whose name and how it should have been prosecuted.

7. This motion is met by a counter motion, by appellant, for a rule nisi from this court to the judge of the city court of Talladega, to show why he should not set aside and annul his order to special Judge Newman, to vacate certain orders therein specified, on the grounds, that said order is absolutely void ; that the city court and the judge thereof were without jurisdiction to grant said order, &c. Conceding that we have the authority invoked in said motion, it appears it ought not to be applied in the case before us.

Generally, the function of a writ of mandamus is to compel a subordinate court to hear and decide a controversy of which it has jurisdiction; or, if the case has been heard, to render a judgment or enter a decree in the cause ; but not to direct what particular judgment shall be rendered, or to correct errors ; not to control but compel judicial action; and the writ will not be granted, where full and adequate relief can be had by appeal, writ of error or otherwise. — The State v. Williams, 69 Ala. 311; Ex parte State Bar Asso., 92 Ala. 116.

But, this is not the limit of the office of that writ. It is sometimes employed to correct the errors of inferior tribunals,and to prevent a failure of justice, or irreparable injury, when there is a clear legal right, and there is absence of any other adequate remedy. We have recently gone over this subject very fully, in the case of Ex parte Tower Man. Co., 103 Ala. 415, and it is unnecessai’y to here repeat what was there said. As illustrative of the application of the remedy to such ends, we refer to Ex parte Robbins, 29 Ala. 71; Ex parte Morgan, 30 Ala. 51; Ex parte Haralson, 75 Ala. 543 ; Ex parte Barnes, 84 Ala. 540 ; Reynolds v. Crook, 95 Ala. 570. In Ex parte Morgan, for instance, to which case reference has already been made, — a case identical in principle with the one before us, — this court held the secnrity not to be in fulfillment of statutory requirements, and a rule nisi for mandamus to correct that ruling was awarded.

There can be no question but that the ruling of' the city court granting the rule nisi to the special judge of probate in this case, requiring contestant to give a good and sufficient security for all the costs of the contest, was fully sustained by the adjudications of this court, to which we have referred. The costs of the trial, if prosecuted to final judgment in favor of contestee, might have far exceeded the limits-of the bond taken, leaving him without the benefits of a statutory judgment against the principal and his sureties for costs, which the statute gave him. An appeal, in the end, for the failure of the judge to' require the proper security, would have been an entirely inadequate remedy for the threatened injury. No such case ought to be allowed to be prosecuted without a proper bond, and if the trial judge fails or refuses to require it, or accepts one not in accordance with the statute, mandamus is the proper remedy to correct his .rulings.

It'is obvious, therefore, if we were to grant the motion of appellant, for a rule against the judge of. the city court, it would be unavailing and useless.

We find no error in the proceedings below, of which appellant, if here on proper appeal, can complain. His motion for a rule nisi to the judge of the city court of Talladega, is denied.

Let the appeal be dismissed out of this court.

Appeal dismissed.