Ex parte May

Petition for Writ of Prohibition

BROWN, LIVINGSTON, LAWSON and SIMPSON, Justices.

For the first opinion, one by the court,, and as governing decision in this election contest, see Ex parte May, 253 Ala. 684, 46 So.2d 836.

The court being in vacation until October, this petition was presented to the senior presiding justice and heard and considered by the above justices, after oral argument, of the parties.

Since it was prima facie within the reasonable discretion of the respondent judge to grant the contestees time within which-to procure and present their evidence in opposition to that of contestants as regards, the truth, vel non, of paragraph 14 of the original petition for writ of prohibition-presented to the respondent judge (as noticed in the first opinion, sup fa), and since, moreover, no good purpose would be served by the issuance of the rule nisi returnable when the court reconvenes in October, we-have deemed it proper to exercise our discretion and refuse the rule.

However, in view of the seriousness of the charge made in the instant petition against the respondent on the basis of certain of his remarks, when the order was entered granting the continuance, we deem it proper to further extend these comments.

The opinion, supra, holding “that the averments of Paragraph 14 of the petition presented to the circuit court were sufficient to invoke its jurisdiction to issue the rule nisi” and that “all the other grounds of the petition presented * * * were insufficient to invoke its jurisdiction” was manifestly not dictum, but went to the heart of the case. This opinion was delivered to guide the respondent in the trial of the: cause and as aid to the parties in accumulating their evidence and for the trial. Such opinions have heretofore been promulgated in rare instances where the court considered the importance of the case demanded :and in delivering the opinion, supra, the court was but following precedent.

But, regardless of the intendment of the remarks of the respondent, set forth in the instant petition, and the interpretation put upon them by the instant petitioners, we do not think that the respondent will' ignore and disregard the plain-spoken word of the Supreme Court and that when the cause comes on for trial August 21st he will not only follow that opinion, but will also try the case with his usual dispatch and fairness. See Johnson v. Glasscock, 2 Ala. 519.

We also deem it not inappropriate to point out that the question was a close one as to whether the court should lay hand on the contest at all. But certainly the Only proper matter available for contest in the court is that as averred in paragraph 14 of the said original petition.

So considered, none of the foregoing justices are willing to order issuance of the rule.

Rule nisi denied.