General
Ex parte GARLINGTON
26 Ala. 170·Alabama Supreme Court·1855·AL
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Opinion
Ex parte GARLINGTON.
1. Mandamus from tlie Supremo Court does not Ho to compel the Circuit Court to strike a cause from the docket, on motion, on the ground that it has been discontinued by a submission to arbitration.
APPLICATION for a mandamus to the Circuit Court of Chambers. Hon. Robert Dougherty, presiding. .
.The petitioner (Joseph E. Garlington) alleges that a suit was instituted against him, in the Circuit Court of Chambers, by M. H. Gladden, endorsee of Julius O.Eckles ; that he af-terwards entered into a written agreement with the real plaintiff in said suit to submit the matters in controversy therein to arbitration; that at the succcccding term of the court he proved this fact to the court, and moved to strike said cause from the docket, on the ground that said submission to arbitration operated a discontinuance of the ¡nút; but thq court overruled Ms motion, and he excepted to its ruling. Appended to the petition, as a part thereof, is a transcript of the proceedings had in said cause, containing a bill of exceptions, signed by the presiding judge, in which the facts alleged in the petition are set out; and on these facts the petitioner asks for a rule nisi against the judge of the ninth judicial circuit, sitting for the county of Chambers, to show cause why a peremptory mandamus should not issue from this court, requiring him to strike said cause from the docket.
L. E. ParsoNS and J. W. Shepherd, for the motion :
1. That the submission to arbitration was a discontinuance of the suit, see Camp v. Root, 18 Jolins. 22; Miller v. Yaughan, 1 ib. 31-1; Stevenson v. Beecker, ib. 492 ; Bean v. Parker, 17 Mass. 591; Ex parte Wright, 6 Cow. 399 ; Yan Cortlandt v. Onondaga C. P., 1 Wend. 314; Larkin v. Robbins, 2 ib. 506 ; Town v. Wilcox, 12 ib. 503 ; Hutchings v. Buck, 32 Maine 277.
2. That mandamus lies on the refusal of the Circuit Court to strike the cause from the docket, see 1 Wend. 314 ; 12 ib. 503 : ó Cow. 399 ; Dixon v. Fields, 5 Eng. 243 ; Cortleyou v. Ten Eyck, 2 Zabr. (N. J.) 45; 4 Ala. 320; 7 ib. 757; 10 ib. 598; 17 ib. 527.
J. E. Belser, for the plaintiff in the suit,
resisted the motion.
[MAJORITY — PER CURIAM.]
PER CURIAM.
— The application must be overruled, on the authority of several adjudged cases.—See Ex parte Elston, 25 Ala. 72; Ex parte Small, ib. 74; Ex parte Rowland, at the present term.