Ex parte Porter ( 1960 )

SIMPSON, Justice

(dissenting).

With respect to the procedual question-, first discussed in the foiegoing opinion, I. respectfully dissent. My views on the-question are stated in my special concur-, rence in the case of Louisville & Nashville Railroad Co. v. Solchenberger, Ala., 120 So.2d 704, 714.¹ I think this to be the sounder rule in view of the long settled, principle that the original and main function, of mandamus is to coerce judicial action, and not to review it and also the rule against “piecemeal” review. I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits

“It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508, 183 So. 401, 403, as follows:

“ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477, 172 So. 761, 762; Derzis v. Cox, 223 Ala. 517, 137 So. 306; Ex parte Louisville & N. R.. Co., 211 Ala. 531, 100 So. 843; Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Smith v. Grayson, 214 Ala. 197, 107 So. 448; Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Code, Section 6490.’

“See also Employers Ins. Co. of Alabama v. Brock, 233 Ala. 551(1), 172 So. 671; Jones v. Wright, 220 Ala. 406 (4), 125 So. 645.”

As regards the case on the merits, I wish-to concur in the result reached by JusticeSTAKELY in his opinion. The right to remove a cause to equity is well understood. See Ex parte Brown & Co., 240 Ala. 157, 198 So. 138; Whitten v. Sheffield, 233 Ala. 580, 173 So. 48. Using this rule as a guide, I think the motion to transfer contains sufficient allegations to show prima facie the right of movant to have the cause transferred to equity in order to attempt to reform the receipt under consideration.

1 . 270 Ala. 536.