Ex parte Duggan

PER CURIAM.

This is a petition for mandamus filed originally in this court.

The background of this proceeding need not be related, as it is set out in the case of Ex parte Joiner, Ala.Sup., 64 So.2d 48.

In brief filed on behalf of petitioner in support of her insistence that the peremptory writ should issue, it is said that the legal questions involved are as follows:

“1. Whether- or not the amendment to Section 491 of Title 7 of the Code -of Alabama of 1940 will now authorize the taking of testimony of an adverse party to a suit either in fact or in anticipation. ■

“2. If Section 491 of Title 7 of the Code of Alabama of 1940 as amended does authorize the taking of testimony of an adverse party to a suit either in fact or in anticipation, then does it violate .Section 5 of the Bill of Rights of the Constitution of Alabama of 1501, guaranteeing to citizens freedom from unreasonable searches and seizures.”

In Ex parte Joiner, Ala.Sup., 64 So.2d 48,¹ supra, we held that § 491, Title 7, Code 1940, as amended, does authorize the taking of testimony of an adverse party and that said section, as amended, did not violate § 5 of the Constitution of this state.'

We also observed in Ex parte Joiner, supra, that the affidavit filed in connection with the application for the perpetuation of the testimony of Mrs. Helen Joiner and the petitioner here, Mrs. M. E. Duggan, seems to comply with the requirements of § 492, Title 7, Code 1940.

We think our consideration here should be limited to the jurisdictional question and the matters argued by counsel for petitioner.

On authority of our holding in the case of Ex parte Joiner, supra, the peremptory writ of mandamus is denied.

Mandamus denied.

LIVINGSTON, C. J., and LAWSON, SIMPSÓN, STAKELY, GOODWYN and MERRILL, JJ., concur. BROWN, J., dissents, as follows.

1 . Post, p. 466.