Long v. Winona Coal Co.

The Winona Coal Company filed a petition in the circuit court of Walker county, seeking to mandamus the judge of probate of said county, requiring him to receive, file, and record a certain certificate offered to him for that purpose by the president and secretary of said company. Upon the presentation of this petition one of the judges of said circuit court entered the following order:

"Upon consideration, it is ordered and adjudged that an alternative writ or rule nisi be and is hereby granted as prayed in said petition and that said judge of probate, the Honorable E. W. Long, is hereby commanded to show cause in said circuit court of Walker county, Alabama, to wit, at 10:00 o'clock a. m., on the 4th day of April, 1921, why he should not be required to file and record said certificate."

This is the only order of any character in the record, and from this order the appeal is prosecuted.

It is manifest there is no judgment of the court upon which an appeal can be predicated. We are aware of no statute authorizing an appeal from the issuance of an order of this character, which, as we construe it, is but an order to show cause and nothing else. The question is a jurisdictional one, and it is the duty of the court to dismiss the appeal ex mero motu. Coker v. Fountain, 200 Ala. 95, 75 So. 471; Wise v. Spears, 200 Ala. 695, 76 So. 869.

The appeal will be dismissed.

ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.

On Rehearing.