Tilman v. The State, ex rel. Cross

Tilman v. The State, ex rel. Cross. Mandamus. (May 21, 1908. 46 South. 586.) Mandamus ; Other Adequate Remedies. — Mandamus will not lie where there is an adequate remedy at law, by appeal or certiorari; and hence, a justice of the peace cannot be compelled by mandamus to discharge a garnishee and release the money garnished. Appeal from Bessemer City Court. Heard before Hon. William Jackson. Mandamus by the state, on the relation of Ales. Cross, against S. J. Tillman, as justice of the peace. Judgment for relator, and respondent appeals. Reversed and rendered. The Himes Supply Company sued Alex. Cross before one S. J. Tillman, a justice of the peace, and procured garnishment to issue to the Woodward Iron Company. The garnishee answered, admitting an indebtedness of $12 due by them to Alex. Cross for work and labor performed by Cross for them. This answer was not contested, and defendant moved the justice of peace to dismiss the garnishment and discharge the garnishee. Upon the justice of the peace declining to do this and to release the money, the defendant applied to the judge of the city court of Bessemer for a mandamus to compel the said justice of the peace to discharge the garnishee and release the money from garnishment. Upon the hearing a mandamus was issued as prayed, and from this order this appeal is prosecuted. Pinkney Scott, for appellant. The relator had his remedy by appeal or certiorari and the petition should have been dismissed. — Richardson v. Kaufman, 143 Ala. 243; Rawls v. Ala. S. & W. Go., 143 Ala. 620. G. F. Goodwyn, for appellee. Counsel discusses the demurrers to the petition with citations of authority but does not discuss the point decided. [MAJORITY — SIMPSON, J.] SIMPSON, J. Without deciding whether or not the petition in this case ivas properly filed in the name of “State ex rel. Alex. Cross,” it appears that the petitioner had an adequate remedy at law, by appeal or certiorari, and, that being the case, the petitioner was not entitled to the writ of mandamus. — C'iv. Code 1896, § 2185; JUco parte Merritt, 142 Ala. 115, 88 South. 188. The judgment of the court is reversed, and a judgment will be here rendered' dismissing the petition. Reversed and rendered. Tyson, C. J., and Haralson and Denson, JJ., concur.