Ex parte Bottoms

PECK, O. J. — In the case of Ex Parte Robins, 29th Ala. 71, it is decided that a suit commenced by attachment, by a non-resident, is within the statute, Revised Code, § 2802, which requires security for the costs to “be endorsed on the complaint, or lodged with the clerk, previous to the issue of the summons,” — and the same case decides that, “if the circuit court refuses, on motion, to dismiss a suit brought by a non-resident, without first giving security for the costs, mandamus lies to compel its dismissal.” We apprehend that decision would not have been made if the statute had not declared, that a suit commenced by a non-resident, without giving security for the costs, must be dismissed on motion.” The statute provides how the suit is to be dismissed, to-wit: by motion. The defendant, therefore, is entitled to have it disposed of in that way. The defendant need not plead the matter in abatement, or if his motion to dismiss is overruled, wait to have the error corrected, after final judgment, as we think he would have to do if the statute did not expressly require the suit to be dismissed on motion. The statute providing not only what judgment shall be rendered, but also how it shall be rendered, to-wit: on motion, the defendant is entitled to the benefit of the statute in the way provided, and if it is denied in that way we know of no adequate remedy but mandamus. If he should be compelled to wait till final judgment, and then seek a remedy by appeal, he would not only be delayed in his remedy, but would altogether be denied the remedy given by the statute. Ordinarily, a judicial error cannot be corrected by writ of mandamus. That writ is the appropriate writ to compel subordinate courts to proceed and determine causes before them, but it does lie to compel a judicial tribunal to render [317] any particular judgment or to set aside a decision already made. — Ex parte Koon et al., 1 Denio, 644; Moses on Mandamus, 36. The original proceedings upon which this application is based, were commenced by an attachment in favor of W. M. Eussell against' Burrell Bottoms, issued by a circuit judge on the first day of November, 1865, returnable to his court, and two days afterwards was levied on the property of the defendant, Burrell Bottoms, the petitioner in this behalf. Five years afterwards, at the fall term of the circuit court, 1870, the bill of exceptions taken in that case, states that the motion of the defendant, theretofore regularly made and continued, to quash said attachment and repudiate the cause, and to strike the same from the docket for want of jurisdiction in the court of the cause, apparent on the face of the affidavits and attachment, and because said cause was discontinued, even if the court had jurisdiction of it, came on to be heard, and after argument by the parties the court overruled said motion and the defendant excepted, &c. After said motion was thus overruled, said Burrell Bottoms, on his petition, applied to this court at the last term for a mandamus to compel said circuit court to grant said motion to quash said attachment and to repudiate said cause and to strike the same from the docket, &c. If it be conceded that said judgment overruling said motion is erroneous, the error cannot be corrected by the writ of mandamus; the remedy is by appeal, after final judgment in the cause. In denying a mandamus it is not necessary to decide whether the motion should or should not have been granted, or whether the facts stated in the affidavits disclose any cause of action, or if they do, that it is such a cause of action as authorized the process of attachment ; but, it seems to us, the affidavits, although very in-artificially drawn, if true, show, not only a good cause of action, but a good cause for the attachment. They state that the plaintiff in the attachment, had bought certain cotton of the defendant, the petitioner, and at the time of the purchase paid him the price in money, and by the agreement of the parties the vendor was to deliver the [318] cotton by a certain future day, and that before that day he sold the cotton to a third person. This conduct of the vendor authorized the vendee to rescind the contract and treat the same as at an end, and to sue presently to recover back the money. He was not obliged to wait until the day the cotton was by the agreement to be delivered. — 2 Parsons on Contracts, 666-67 and note c. Said affidavits also state that said Burrell Bottoms had fraudulently disposed of his property, and that an attachment was not sued out for the purpose of vexing or harrassing said Burrell Bottoms, &c. These statements we think clearly entitled the vendee to the' aid of an attachment. If the said affidavits are defective in form, § 2990 of the Revised Code permits their amendment. For these reasons the application for a mandamus must be .denied, at petitioner’s cost.