Ex Parte Hennies , 33 Ala. App. 229 ( 1947 )

HARWOOD, Judge.

On 23 April 1947, Honorable G. C. Boner, as Judge of the Jefferson County Court of Misdemeanors, fined the petitioner in this cause Fifty Dollars and sentenced him forthwith to jail for contempt.

This action on the part of the court occurred at the close of a preliminary hearing in connection with a charge of burglary against Sally Rand, the petitioner having signed the affidavit on which the warrant of arrest was issued. Miss Rand was discharged at the conclusion of the preliminary hearing, and Judge Boner thereupon asked petitioner if he had signed the affidavit and being told by petitioner that he had, imposed the above punishment for contempt.

Having been committed to jail pursuant to the above court order the petitioner filed an original petition for a writ of mandamus in this court praying that said judgment of contempt be vacated. ■ This court on 24 April 1947 issued a rule nisi to Judge Boner to show cause on 15 May 1947 why a writ of mandamus should not be issued as prayed, and further ordering that the sentence be suspended pending further orders of this court, and releasing petitioner from jail on his entering into a bond in the sum of Five Hundred Dollars.

Thereafter on 15 May 1947 respondent’s demurrer and answer to the petition were filed and the cause argued in this court.

In Lewis et al. v. Jenkins, 215 Ala. 680, 112 So. 205, 206, our Supreme Court wrote:

“Whatever may have been the rule of pleading under the common law in mandamus proceedings, our statute * * * requires an application for mandamus to be made by petition, and treats the petition as the first pleading in the case. As such its sufficiency may be tested by demurrer. State Tax Commission v. Tennessee C. I. R. Co., 206 Ala. 355, 89 So. 179.”

Grounds 3 and 3a of respondent’s demurrer are respectively as follows:

“3. The petition shows most plainly upon its face that the petitioner seeks by and through the petition to review the correctness of the respondent’s action as Judge of the Jefferson County Court of Misdemeanors in adjudging the petitioner to be guilty of a contempt of said court; and it is the law that a judgment of contempt is not subject to review by a petition for mandamus.

“3a. The petition for mandamus is nothing more nor less than an attempt to appeal from the judgment of the Jefferson County Court of Misdemeanors to the Court of Appeals of Alabama; and any such attempt to appeal is not permitted by law and the Honorable Court of Appeals is without jurisdiction to entertain such appeal.”

In Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So.2d 722, which was an appeal from a judgment for the informant in a proceeding by the Bessemer Bar Association against Ed Wetzel to have Wetzel adjudged in contempt for and on account of unlawfully practicing law, our Supreme Court wrote:

“The review of an order made in a proceeding for contempt of court is by way of an appropriate extraordinary writ and not by appeal. 13 Corpus Juris 101; 17 C.J.S., Contempt, § 117; In re James H. Willis et al., [242 Ala. 284], 5 So.2d 716.

“It may be said that the remedy for review in contempt proceedings is by certiorari if the party in contempt is not in prison and by habeas corpus if the party in contempt is in prison. Robertson v. State, 20 Ala.App. 514, 104 So. 561; Ex parte Bankhead, 200 Ala. 102, 75 So. 478; Ex parte Dickens, 162 Ala. 272, 50 So. 218. For annotations on review in civil contempt see 28 A.L.R. 33.

“The appellant has not pursued the proper remedy. In re James H. Willis et al., supra; Ex parte Connor et al., 240 Ala. 327, 198 So. 850; Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971; Ex parte Dickens, 162 Ala. 272, 277, 50 So. 218, supra; Easton v. State, 39 Ala. 551 87 Am.Dec. 49.”

Speaking through Justice Bouldin, our Supreme Court in the case of Ex parte Wheeler, 231 Ala. 356, 357, 165 So. 74, 75, reiterated the above rule in the following language:

“Where the record in contempt proceedings discloses a want of jurisdiction, or an error of law in holding that to be contempt which in law is no contempt, but the exercise of a lawful right, a review may be had by common-law certiorari.' Thus in. Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, 5 Am.St.Rep. 384, a witness claimed his constitutional right to refuse to answer a question tending to incriminate him. The facts were incorporated in the judgment, and so were reviewable by certiorari.

“Other cases disclose a want of jurisdiction in the court to make the order whose violation is alleged to be a contempt (Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 68 So. 971) ; or, if the matter has proceeded to the point of imprisonment on a committal] void on the face of the record, habeas corpus is a remedy. Ex parte Pearce, 111 Ala. 99, 20 So. 343; Ex parte John Hardy [68 Ala. 303]; Ex parte Dickens, supra [162 Ala. 272, 50 So. 218]”

In the recent case of Ex parte Hacker et al., Ala., 33 So.2d 324,¹ Justice Brown stated:

“It is the settled law in Alabama that common law certiorari is the remedy to review a judgment or decree holding persons guilty of contempt, who are not imprisoned, and if imprisoned, habeas corpus is the remedy. Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So.2d 722; Ex parte Dickens, 162 Ala. 272, 50 So. 218; Bankston v. Lakeman, 219 Ala. 508, 122 So. 819; Ex parte Hill, 229 Ala. 501, 158 So. 531.”

It is fundamental that mandamus will not lie where there is another adequate legal remedy, such rule stemming from the high prerogative nature of the writ of mandamus. The above decisions of our Supreme Court indicate that it is the view of that court that common law certiorari, or habeas corpus, furnish adequate legal remedies for one adjudged in contempt, the remedy to be pursued depending on whether the contemner be in or out of prison.

Nor is it apparent to us that the nature of the contempt charged, that is whether civil or criminal, direct or constructive, can effect or enlai'ge the nature of the remedies to be employed by one complaining of error on the paid of the lower court in entering the contempt judgment.

In the opinion of the writer the doctrine enunciated in the cases above necessitates a finding on the part of this court that respondents demuri'er to the petition in this case is well founded and must be sustained, and fux'ther that the rule nisi heretofore issued by this court on 24 April 1947 to Honorable G. C. Boner, Judge of the Jefferson County Court of Misdemeanors, commanding him to show cause why a peremptory writ of xnandamus should not issue, and suspending the execution of the sentence for contempt imposed on the petitioner, should be withdrawn and held for naught. It is so ordered.

Concluding that the demurrer to this petition should be sustained, we of- course refrain from consideration or discussion of the sufficiency of the matters set forth in respondent’s answer to the petition.

Demurrer to petition sustained; rule nisi heretofore issued by this court on 24 May 1947 withdrawn and held for naught.

1 250 Ala. p. 64.