Opinion
16800.
OCTOBER 11, 1949.
Mandamus. Before Judge Almand. Fulton Superior Court. June 8, 1949.
Reuben A. Garland, Anthony Alaimo and Roland D. Hartshorn, for plaintiff.
W. S. Northcutt, Durwood T. Pye, E. A. Wright, and James W. Dorsey, for defendant.
1. Mandamus will not lie if there exists another legal remedy.
2. Construing the allegations of the petition most strongly against the pleader, the petition shows that the appeal was filed more than four days after the rendition of a judgment by the ordinary, and for this reason the trial judge did not err in dismissing the petition for the writ of mandamus.
No. 16800. OCTOBER 11, 1949.
Henry Gray, as next friend of Vivian Gray, filed his petition for the writ of mandamus against Eugene Gunby, as Ordinary of Fulton County, in which he alleged: That on April 25, 1949, Gunby, as such ordinary, passed an order committing Vivian Gray to the Milledgeville State Hospital; that on April 30 an appeal to the superior court was tendered to the ordinary; that on May .7, 1949, Henry Gray, as next friend of Vivian Gray, "amended his appeal by showing the tender of the accrued costs and by furnishing security for any future costs in said case, said appeal being filed on same date." On May 18, 1949, counsel for Henry Gray requested the ordinary to transmit the appeal to the Clerk of Fulton Superior Court; this request was denied, and the following order was passed: "In re Vivian Gray. The approval of the within and foregoing appeal, entered herein April 30, 1949, is hereby rescinded and revoked, it appearing that the moving party was not a pauper. This the 18th day of May, 1949. Eugene Gunby, Ordinary."
The petition prayed that a mandamus nisi issue, requiring the ordinary to show cause why he should not be required to enter an appeal and transmit the appeal to the clerk of the superior court; and that, upon a hearing, the mandamus be made absolute.
On oral motion, the trial court dismissed the petition, and the exception is to that judgment.
1. The petition in this case clearly shows that the plaintiff in error seeks to review what he claims to be an error in the judgment of the ordinary, dated May 18, 1949. Express provision is made in the Code, §§ 6-201 and 19-201, for the right of appeal and the right of certiorari from decisions and judgments rendered by the ordinary. The Code, § 64-101, provides that mandamus is available only "if there shall be no other specific legal remedy." This court has many times held that mandamus will not lie if there exists another legal remedy. Since, in this case, there was another complete remedy, there was no error in dismissing the petition.
2. An appeal from the ordinary's court must be filed within four days. Code, § 6-102. The petition in the instant case contains this language: "On May 7, 1949, Henry Gray as next friend of Vivian Gray amended his appeal by showing the tender of the accrued costs and by furnishing security for any further costs in said case, said appeal being filed on same date." Construing the allegations of the petition most strongly against the pleader, as must be done, the petition alleges that the appeal was filed May 7, which was twelve days after the original judgment; and for this reason there was no error in dismissing the petition.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who concurs in the judgment, but dissents from headnote 1 and the corresponding division of the opinions; and Almand, J., disqualified.