Opinion
6 Div. 897.
January 14, 1932. Rehearing Denied February 4, 1932.
M. B. Grace, of Birmingham, for appellant.
While mandamus does not lie to control judicial action, yet if an order, judgment, or decree is made which is not subject to revision by appeal or other revisory remedy, and it is erroneous, working injury to the complaining party who has no adequate legal remedy, mandamus will lie and is the appropriate remedy. Ex parte Watters, 180 Ala. 523, 61 So. 904; Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836. If the trial judge, on conflicting questions of fact, decides the matter not on the prayer for relief or on the issues made by pleadings, but on some collateral issue, his judgment or decree cannot be given the force of the verdict of a jury. Lassiter Co. v. Nixon, 218 Ala. 484, 119 So. 17; Code 1923, §§ 8599, 9498.
Mullins, Pointer Deramus, of Birmingham, for appellee.
Mandamus will be granted to command the exercise of judgment or discretion, but will not direct the manner of its operation, and will not lie for the correction of errors. Ex parte State ex rel. Ingram Land Co., 208 Ala. 28, 93 So. 820; State v. Board of Revenue Road Com'rs, 180 Ala. 494, 61 So. 368; State v. Williams, 69 Ala. 311; Merrill on Mandamus, 33; 38 C. J. 598, 606. The conclusion of the trial judge upon hearing of oral testimony which is conflicting has the effect of a jury verdict, and will not be set aside unless palpably wrong. Browne v. Giger, 221 Ala. 176, 128 So. 174; Wiegand v. Ala. Power Co., 220 Ala. 620, 127 So. 206; Watson v. Ingalls, 218 Ala. 537, 119 So. 667.
The proceedings before the chancellor presented an issue of fact upon which the evidence, heard orally before the court, was in sharp conflict. As to whether or not, under these circumstances, the ruling corresponds with the opinion of the appellate court as to the weight of the evidence, is not the question of controlling importance, for due consideration is to be given the advantage the chancellor has enjoyed of seeing and hearing the witnesses testify and observing their demeanor upon the stand. Cobb v. Malone, 92 Ala. 630, 9 So. 738. The well-established rule therefore by which this court is to be guided in the instant case is that the finding of fact by the chancellor will not be here disturbed, unless we are persuaded that it is plainly and palpably wrong. Wiegand v. Alabama Power Co., 220 Ala. 620, 127 So. 206; Curb v. Grantham, 212 Ala. 395, 102 So. 619; Watson v. Ingalls, 218 Ala. 537, 119 So. 667.
The question is not one free from difficulty. The answer of respondent discloses all the evidence and that the conclusion of the chancellor was reached after taking the matter under advisement following argument, from a consideration of the conflicting evidence and an observance of the witnesses who testified upon the issues presented.
We will here enter into no discussion of this evidence. Suffice it to say it has been carefully considered by the court in consultation, and that we are not persuaded the ruling of the chancellor upon the conflicting proof was so plainly and palpably wrong as to justify any disturbance thereof by this court.
All other questions, therefore, aside, we are of the opinion petitioner is not entitled to the relief he seeks, and his petition is hereby dismissed.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.