Ex parte Russell , 29 Ala. 717 ( 1857 )

RICE, C. J.

The second section of the fifth article of the constitution of this State declares, that “ the supreme court, except in cases otherwise directed by this .constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law ; provided, that the supreme’ court shall have power to issue writs of injunction, mandamus, quo war-ranto, habeas corpus, and such other remedial and original writs, as may be necessary to give it a.general superintendence and control of inferior jurisdictions.”

If it be “ necessary” to give this court “ a general superintendence and control of” the probate court of Sumter county, in matter.; like that complained of by the petitioner, that this court should issue the writ of prohibition, for which the petitioner has applied, it has the constitutional power to issue it. But if there is any court, inferior to this, which possesses the authority to afford to the petitioner relief as ample as this court could grant, or the law would sanction, this court has no constitutional power to award the writ, in the absence of any application to such inferior court. — Ex parte Simonton, 9 Porter, 383; The State v. Porter, 1 Ala. Rep. 688 ; Ex parte Tarleton, 2 ib. 35 ; Ex parte Morgan Smith, 23 ib. 98 ; Ex parte Pickett, 24 ib. 91 ; Thompson v. Lea, 28 ib. 453.

By section 628 of the Code, the circuit court of Sumter is invested with authority “ to exercise a general superintendence over all inferior jurisdictions” in that county ; and may therefore issue the writ of prohibition, if the petitioner shows that he is entitled to it. If that court, upon a proper application, refuses to interfere, or if it takes jurisdiction and mistakes the law, “ it will then be sufficiently early for a resort to this court.” Until then, we carefully abstain irom intimating an opinion upon the question, whether the petitioner has been aggrieved by the action of the probate court, or whether he is entitled to the issue of the writ of prohibition out of the circuit court. Seo 'Ex parte Tarleton, supra, and other authorities cited above.

As no application for the writ of prohibition has been made by the petitioner to the circuit court of Sumter,'it is clear, from the views above expressed, and the authorities above cited, that this court cannot issue the writ; and the application made to this court is therefore denied, at the costs of the petitioner.