Ex Parte State , 217 Ala. 702 ( 1928 )

Petitioner brought suit against the sheriff of Dallas county and the surety upon his official bond. Demurrer to the complaint was interposed by each. The demurrer of the defendant sheriff was overruled, and that of the surety sustained. There were numerous assignments of demurrer, but the opinion of the court discloses the view of the trial judge there could be no recovery against the surety under the complaint as presently framed.

Petitioner by this mandamus proceeding seeks a review of the ruling sustaining the demurrer of the surety, and the inquiry arising at the threshold of the consideration of this petition is whether or not the remedy by mandamus is available. That it is an extraordinary writ to be issued only where there is no other adequate legal remedy is not questioned. It is also settled by uniform line of authorities that it is a rule of general application that mandamus will not be granted for the purpose of review, and is not available as a substitute for an appeal. 38 Corpus Juris, 570; Johnson v. Westinghouse, etc., Co., 209 Ala. 672, 96 So. 884. It follows, of course, likewise, that as a general rule "rulings as to the sufficiency of pleadings cannot be reviewed on mandamus." 38 Corpus Juris, 626.

It appears from the averments of the petition that defendant sheriff has no property out of which a judgment could be satisfied, and that, from a standpoint of practical result, the suit is one against the surety.

We are of the opinion our statute authorizing a nonsuit for a review (among other rulings) of rulings of a trial court upon the pleadings, presents to petitioner an adequate remedy at law, such as to deny to him the extraordinary remedy here sought. Section 6431, Code of 1923; Bush v. Russell, 180 Ala. 590,61 So. 373; Duncan v. Hargrove, 22 Ala. 150.

Counsel for petitioner recognize the availability of this statute under ordinary circumstances as applicable to this cause, except for the mere fact that, as to defendant sheriff the demurrer being overruled, plaintiff could proceed to trial, and entertained some apprehension that on this account it may be held that a nonsuit had not "become necessary" under said statute. The apprehension is unfounded. The petition discloses that for practical purposes the suit is against the surety, and the fact that plaintiff prefers to have the question of liability of such surety first determined rather than press for a judgment against the defendant sheriff alone is of no concern of the courts; that is a matter resting solely with the plaintiff, and that he may suffer a nonsuit and bring the question of the ruling on demurrer as to the defendant surety, we think, is clear. Bush v. Russell, supra.

Such was the course pursued in Peinhardt v. West, 212 Ala. 83,101 So. 736, which upon the question here involved bears a striking analogy to the instant case, where the adverse rulings superinducing the nonsuit appear to have affected the question of surety liability only, and where the right to review these questions in the manner there indicated was not questioned by counsel or the court.

The remedy of plaintiff is, in our opinion, as above indicated, and the petition for mandamus will be denied.

Writ denied.

ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.