State ex rel. Heirs of Walker v. Judge of the Orphans' Co. , 15 Ala. 740 ( 1849 )

COLLIER, C. J.

A mandamus is asked; in this case, to compel, the orphans’, court of Macon to proceed in the settlement of the testator; Walker’s, estate. From the record submitted to us, it appears that an injunction has been granted at the instance of the executor,.enjoining the heirs from proceeding in the orphans’ court, “ for the settlement of; the estate, of William Walker, deceased, and the court from molesting or-disturbing” -the executor, until the further- order in chancery. The condition upon which the jiai for the injunction was granted, has been complied with, and; the injunction has been served on the judge. .

It. is insisted, that as such process cannot, he rightfully granted against a court, or the judge thereof, the injunction is thus far- a mere nullity, and affords no warrant for the refusal of the judge to perform the-duties required of him by law. Without stopping to inquire whether the judge of the orphans’ court is a proper party to the executor’s bill, it will be observed; that- the heirs who are attempting to’ coerce- the settlement are also parties, and whether they have’been served with process or not, the -information which; the judge has received, furnishes a reason quite sufficient why he should-susr pend proceedings, as long as the injunction-continues in -force. It does not appear affirmatively, that the process has. not been served- on the heirs and distributees of the -testator, but even if this has not been done, if they have been informed that they have been enjoined from proceeding further, by the injunction, which has been regularly made known to the judge, is it certain that they would not be guilty of a contempt, if they should proceed in despite of its mandate? However this may be, no court should, in an indirect' proceeding, undertake to scan the equity of the bill, or the propriety of the order, made upon it. These are questions which must be adjudicated in chancery, and if either party should be' dissatisfied with the decision there, the revisory powers of this court are competent to afford adequate relief. - ■

A writ of mandamus is certainly the appropriate remedy to compel inferior tribunals to perform the duties required of them by law. Commonwealth v. Hampden, 2 Pick. Rep. 414; Carpenter v. Bristol, 21 Pick. Rep. 258. So, a mandamus will lie where there is a clear legal right, and no other appropriate legal remedy. Ex parte Jones, 1 Ala. Rep. 15; The State v. The Justices of Moore, 2 Ired. Rep. 430; Goings v. Mills, 1 Ark. 11; The People v. The Corporation of Brooklyn, 1 Wend. Rep. 318. But this writ will not lie where the party is entitled to another specific remedy; nor will it be granted, where the party complaining may have a writ of error. Ex parte Nelson, 1 Cow. Rep. 417; Bank of Columbia v. Sweeny, 1 Pet. Rep. 567; Commissioners v. Lynah, 2 McC. Rep. 170; State v. Holliday, 3 Hals. Rep. 205; State v. Dunn, Minor’s Rep. 46; Justices v. Munday, 2 Leigh’s Rep. 165. An erroneous decision of a subordinate court, cannot be revised by a mandamus from an appellate tribunal. Ex parte Hoyt, 13 Pet. Rep. 279; Warren Co. v. Daniel, 2 Bibb’s Rep. 573; Oneida Common Pleas v. The People, 18 Wend. Rep. 79; Ex parte Gordon, 2 Hill’s Rep. (N. Y.) 363; Ex parte Koon, 1 Denio’s Rep. 644; The State v. Bowen, 6 Ala. Rep. 511. Nor will a mandamus be awarded, to command an officer to do that-, which it was not lawful for him to do,- without such a mandate. Gillespie v. Wood, 4 Hump. Rep. 437; Ross v. Lane, 3 Smedes & M. Rep. 695.

This- brief condensation of principles very conclusively shows, that the prayer of the petitioner should not be- granted. We -have seen that the injunction was sufficient to arrest the action of the judge of the orphans’ court, and that in despite of its mandate he could not legally proceed. This being the case, a mandamus would oblige hitn to do that which he could not legally do without it, and to effect such a purpose it cannot be awarded.

Again: the petition objects to the order of the chancellor, and draws in question his decision upon a matter on which he has ample authority to act. This, we have said, cannot be done collaterally. The law has provided a clear remedy for the petitioners, by moving to dissolve the injunction, or dismiss the bill, and if the decision of the chancellor shall be adverse to them, they may prosecute an appeal or writ of error to this court.

Conceding, however, that a proper case was made for a mandamus, then it may be asked, if the writ should not have been first moved for in the circuit court. See ex parte Jones, 1 Ala. Rep. 15; The State ex rel. The Attorney General v. Williams, 1 Ala. Rep. 342, and several later decisions of this court.

We have but to add, thht the prayer of the petition is denied.