Ex parte Henderson , 43 Ala. 392 ( 1869 )

PECK, C. J.

This is an original application to this court, to grant a writ of mandamus to require the probate judge of Wilcox county, to sign and seal a bill of exceptions, at instance of the applicant. Without considering the merits of the application in any wise, we decline to take jurisdiction of it, because it is an original application, and no sufficient reasons are shown, why it was not made to the circuit court of the proper circuit, or to the judge of that court in vacation.

The circuit courts have original jurisdiction in all matters, civil and criminal, within the State, not otherwise excepted in the constitution. — Fifth section, Article VI Con.. Alabama.

The several judges of said courts, have authority in vacation, to grant writs of certiorari, supersedeas, quo warranto, mandamus, and all other remedial and original writs, which are grantable by judges at the common law. — See § 747 of the Eevised Code.

The supreme court, except in cases otherwise directed in the constitution, has appellate jurisdiction only. — See section two of said Article. The proviso of said section, authorizes said court to issue writs of injunction, mandamus, habeas corpus, quo warranto, and such other remedial and original writs, as may be necessary to give it a general superientendence and control of inferior jurisdictions.

The necessity here spoken of, can not be said to arise, if there is any other court or judge in the State, who has authority to issue said writs.—The Simintons, Ex parte, 9 Porter, 383; Ex parte Russell, Ala. 717; Mansony Ex parte, 1 Ala. 98. This application, therefore, should have been made, in the first instance, in the proper circuit court, in term time, or to the judge of said court, in vacation. If this had been done, and the application refused, then the decision of the said court or judge would be revised in this court by appeal.—See Pamphlet Acts, 1868, p. 410.

Let the application be denied at the costs of the applicant.

Note by Reporer. — At a subseqent day of the term an application was made for a rehearing, which the court denied as follows:

Per Curiam.

The motion for a rehearing in this case is denied. June 19th, 1869.