Opinion
87-621.
September 23, 1988. As Corrected On Rehearing Ex Mero Muto September 30, 1988. Rehearing Denied December 16, 1988.
Petition for Writ of Mandamus.
H. Neal Cook, Haleyville, for petitioner Dean Miller.
Russell Eason, Haleyville, for petitioner Jessie Flanagin.
Garve Ivey, Jr., Jasper, for Delton Johnson.
William E. Shinn, Jr., Decatur, for respondent Sec. Mut. Finance Corp.
Because one of the defendants is a foreign corporation, the writ is due to be denied on the authority of Ex parte Illinois Central Gulf R.R., 537 So.2d 899 (Ala. 1988); and Vandergriff v. Southern Ry., 537 So.2d 904 (Ala. 1988).
WRIT DENIED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
ON APPLICATION FOR REHEARING
Petitioners attach to their application the certificate of incorporation of defendant Security Mutual Finance Corporation showing it to be a domestic corporation. There is no indication that this certificate was introduced in support of the motion to transfer, however, or that the defendants otherwise contradicted plaintiff's allegation that Security Mutual was a foreign corporation. Given that uncontested allegation, the motion to transfer was due to be denied as a matter of law, for the reasons stated in Ex parte Illinois Central Gulf R.R., and Vandergriff v. Southern Ry., both cited in our original opinion in this case, as corrected.
For mandamus to issue, "there must be an imperative duty upon the respondent in the petition for mandamus to perform his duty, and which he has refused to do." State ex rel. Holcombe v. Stone, 232 Ala. 16, 17, 166 So. 602, 603 (1936). It does not appear that the judge below has been asked to rule on the motion for transfer in light of the now-apparent fact that none of the defendants is a foreign corporation, so we decline to issue the writ.
OPINION EXTENDED; APPLICATION OVERRULED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.