Murphy v. State ex rel. Egger

BRICKELL, C. J.— The right to a mandamus to compel the appellant to restore to the relator, the goods seized under the attachment, seems to be rested on two distinct grounds. The first is, that the statute authorizing the issue of the attachment is unconstitutional. The second, that the plaintiff in attachment had abandoned and waived all claim to the goods by refusing to take them from the possession of' the bailee of the sheriff, after having given bond in accordance with section nineteen of the act of February 9th, 1877, (Pamph. Acts, 1876-7, p. 39), for their redelivery to the relator, if the contest of his claim of exemption was not sustained. It is the mere repetition of a truism, to say, that “ the invariable test, by which the right of a party applying for a mandamus is determined, is to inquire,, first, whéther he has a clear legal right; and if he. has, then, secondly, whether’ there is any other adequate remedy to which he can resort to enforce his right.”—Withers v. State, 36 Ala. 252. Without considering whether the relator in either of the aspects in which he presents the case, has a clear legal right, it is-apparent if he has, that the ordinary remedies afforded by’ law are adequate to its enforcement. If the statute authorizing the issue of the attachment, is violative of the consti [641] tution, on a proper plea the attachment will be abated. So, if possession of the goods are wrongfully withheld from him, because of the refusal of the plaintiff in attachment to take them from the custody of the bailee of the sheriff, in an appropriate action at law the wrong may be redressed. Mandamus can not be made to answer the office of a plea to a pending suit, nor of an action at law for the recovery of specific property, or for the abuse of process. The demurrer to the application was well taken, and the City Court erred in not sustaining it. For the error, the judgment must be reversed, and the proper judgment here rendered sustaining the demurrer, and quashing the application, at the costs of the relator in this court, and in the City Court.