Opinion
5 Div. 804.
June 22, 1922.
Appeal from Fifth Judicial Circuit, circuit court of Tallapoosa county, Hon. S. L. Brewer, Judge.
Black Harris, of Birmingham, for petitioner.
Change of venue in a civil suit should be granted where, by reason of undue influence existing in a county in behalf of one of the parties, a fair trial cannot be had by the other party. (Sup.) 150 N.Y. Supp. 29; (Ky.) 41 S.W. 35; 105 Ky. 586, 49 S.W. 428; 140 Mo. 314, 41 S.W. 796; 5 Ind. 370; 119 App. Div. 503, 104 N.Y. Supp. 275. Mandamus is proper to correct errors of inferior tribunals, when there is no other available remedy to prevent a failure of justice. 180 Ala. 523, 61 So. 904; 114 Ala. 659, 21 So. 1017; 103 Ala. 415, 15 So. 836; 48 Utah, 342, 159 P. 737, 4 A.L.R. 632; 142 Mich. 272, 105 N.W. 757; 199 Ala. 678, 75 So. 312; 25 Ala. 387; 120 Ala. 117, 23 So. 733. Mandamus is the proper remedy to correct an abuse of judicial discretion. 200 Ala. 475, 76 So. 417; 180 Ala. 489, 61 So. 368; 119 Ala. 476, 23 So. 999.
James W. Strother, of Dadeville, for respondent.
Mandamus does not lie on the refusal of a change of venue. 28 Ala. 28; 52 Ala. 366; Merrill on Mandamus, 230; 100 Ill. 458; 22 Wis. 99; 24 Cal. 78. The office of mandamus is to compel an inferior tribunal to take action, not to direct what action shall be taken in a matter involving the exercise of discretion. 190 Ala. 641, 67 So. 240; 97 Ala. 107, 11 So. 892; 92 Ala. 113, 8 So. 768, 12 L.R.A. 134; High on Ext. Leg. Rem. § 147; 43 Ark. 324; 62 Ala. 252.
The petition was for change of venue in a civil case. The prayer thereof was for writ of mandamus directing the presiding judge of the circuit embracing the county of Tallapoosa "to enter an order changing the venue in" the pending case of Ingram Land Company, a partnership, against Nora E. Miller, "and transferring it for trial to some other than Tallapoosa county, Ala."
Relator's counsel makes the observation of the effect of the order sought, that after the circuit court having jurisdiction "had entered an order refusing to grant plaintiff's motion for a change of venue of said cause" this court "direct the circuit court of Tallapoosa county to retrace its steps, and, on the grounds of alleged error, reverse its decision already rendered" — its judgment or order made and entered in said cause and motion. However, it is —
"well-settled law that when the duty to be performed is judicial, or involves the exercise of discretion on the part of a tribunal or officer, mandamus will lie to set judgment or discretion in motion, but will not direct the manner of its exercise. 'The writ cannot be used for the correction of errors. If, however, judgment or discretion is abused, and exercised in an arbitrary and capricious manner, mandamus will lie to compel a proper exercise thereof.' 19 Amer. Eng. Ency. pp. 737-739; State ex rel. Mobile v. Board of Revenue, 180 Ala. 494, 61 So. 368; White v. Decatur, 119 Ala. 476, 23 South, 999." Henry v. State ex rel. Welch, 200 Ala. 475, 476, 76 So. 417, 418.
After a careful examination of the petition, return and answer of the judge, and the affidavits and counter affidavits offered, we perceive no arbitrary exercise or capricious abuse of discretion in refusing to order a change of venue. No good purpose would be subserved by a detailed recital of pleadings, or of the contents of the affidavits in support of the motion or of the counter affidavits rebutting the same.
The writ of mandamus is denied.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.