Opinion
1 Div. 308.
June 12, 1924. Rehearing Denied June 30, 1924.
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
Barnett, Bugg Lee and R. L. Jones, all of Monroeville, for appellants.
The amended petition should have been stricken on motion. Code 1907, § 5367. There must be a demand and refusal to act before mandamus is authorized. Ex parte Schudder-Gale Gro. Co., 120 Ala. 434, 25 So. 44; 26 Cyc. 193. The claim being disallowed, petitioner had an action at law, and mandamus does not lie. Scarborough v. Watson, 140 Ala. 349, 37 So. 281; Fountain v. State, 210 Ala. 51, 97 So. 59; Minchener v. Carroll, 135 Ala. 409, 33 So. 168; Ex parte Woodruff, 123 Ala. 99, 26 So. 509; State v. Wilson, 123 Ala. 259, 26 So. 482, 45 L.R.A. 772; 26 Cyc. 139, 172. The board of revenue is a court of record, and its records are the exclusive evidence of its acts. Code 1907, § 3306; Speed v. Cocke, 57 Ala. 209; Smith v. McCutchen, 146 Ala. 455, 41 So. 619; Mobile County v. Maddox, 195 Ala. 336, 70 So. 259; Crenshaw County v. Sikes, 113 Ala. 626, 21 So. 135. The allowance of the claim being improvidently made, the motion to transfer to the equity docket should have been granted. Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922; Emerson v. Bowers, 14 N.Y. 449; In re Treadwell's Estate, 37 Misc. Rep. 584, 75 N.Y. Supp. 1058; In re Connor's Estate, 110 Cal. 408, 42 P. 906; Nichols v. Smith, 186 Ala. 587, 65 So. 30.
Powell Hamilton, of Greenville, for appellees.
The alternative writ of mandamus performs the office of the complaint. Wheeler v. Northern, 10 Colo. 582, 17 P. 487, 3 Am. St. Rep. 603; 18 R. C. L. 340, 349; Tapping on Mandamus, 362; State v. Board, 10 Iowa, 157, 74 Am. Dec. 381; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; 26 Cyc. 426; Board v. People, 12 Ill. 248, 52 Am. Dec. 488; Longshore v. State, 137 Ala. 636, 34 So. 684; Garrett v. Cobb, 199 Ala. 80, 74 So. 226. The petition may be amended as often as necessary to meet the ends of justice. Code 1907, § 4864. The demand upon one member of the board was a demand upon all. Chumasero v. Potts, 2 Mont. 255; 19 Am. Eng. Ency. L. (2d Ed.) 762. And where it would be unavailing, it need not be made. 12 Cyc. 182. The order of allowance should have been spread upon the minutes, and the subsequent order, being coram non judice, was no defense for a failure. Comm. Court v. Moore, 53 Ala. 25; Speed v. Cocke, 57 Ala. 209; Jack v. Moore, 66 Ala. 184; Jeff. Pub. Co. v. Hilliard, 105 Ala. 576, 17 So. 112. After allowance the board has no authority to retract. Comm. Court v. Moore, supra. The action denying the motion to transfer the cause to the equity docket is not reviewable. Acts 1915, p. 830; Pearson v. City, 210 Ala. 296, 97 So. 916.
The question of primary importance presented by the record in this case is upon the right of the petitioners to compel the board of revenue of Monroe county to have entered upon its minutes — the record proper of its proceedings — the fact that the claim of petitioners was duly filed and duly allowed by the action of a majority of the board.
That the claim was regularly allowed, and a sufficient written memorial made thereof, and that the term was terminated by adjournment of the board without rescinding that action, are admitted facts as to which there can be no dispute.
On the former appeal of this case (Fountain, Probate Judge, etc., v. State ex rel. Hybart et al., 210 Ala. 51, 54, 97 So. 59, 61), we said:
"The question at hand is whether in the circumstances shown by the record before the circuit court mandamus was the proper remedy for the enforcement of the performance by the probate judge of all or any of the duties just enumerated. It is conceded that upon the facts shown by the pleadings the order allowing relators' claim on May 9th should have been spread upon the minutes of the board of revenue."
There is no question but that it was the duty of the probate judge as president of the board — a mandatory duty imposed by section 3314 of the Code — to enter upon the minutes of the board a record of the allowance of petitioners' claim.
"After the commissioners' court has audited and allowed a claim it has not capacity [at another and later session] to retract. It may not recall the admission of indebtedness it has made, and deprive the party holding the claim of the force the law attaches to its audit and allowance." Commissioners' Court v. Moore, 53 Ala. 25.
Very clearly, then, petitioners acquired a valuable right by the action of the board of revenue in auditing and allowing their claim. But "the allowance of a claim must be matter of record. A court of record speaks only through its records. A written memorial is the only evidence which other courts can receive of its proceedings, whether it is of the exercise of judicial power, or of mere ministerial authority and duty." Speed v. Cocke, 57 Ala. 209.
Hence there is no escape from the conclusion that the right acquired by petitioners — evidenced as it was by a written memorial of the action of the board, sufficient in itself to call into exercise the statutory duty of its recordation — is a clear legal right which cannot be nullified and defeated by either the failure of the probate judge to perform his duty, or by the subsequent action of the board in attempted rescission. The right, to be practically effective, must be supported by formal record evidence; and petitioners have no remedy to make their conceded right effective except by the mandatory process here invoked.
To say that the board's subsequent action of disallowance gives to petitioners a clear legal right to proceed by action at law to the enforcement of their claim is to beg the question entirely; for in that case the wrongful refusal to make the records of the board show the admission formally and irrevocably made by the board would compel petitioners to proceed without the advantage of the record evidence in support of their claim to which they are clearly entitled. In short, the relief here sought is not merely the enforcement of petitioners' claim, but primarily to enforce their right to record evidence showing prima facie its existence and validity.
The amendment to the petition was properly allowed. It did not work an entire change of parties. The original petition and writ were against Fountain as probate judge, and also as ex officio president of the board of revenue. Under the amended petition he remained a party in the same capacities, and the bringing in of other members of the board as necessary parties did not change the character or purpose of the proceeding.
Nor did the addition of the averments and prayer with respect to the expunction of the void action of disallowance from the records of the board render the petition or the writ subject to demurrer or other form of objection upon the theory that the amendment must relate back to the filing of the original petition, and that the right to that particular relief was then nonexistent. The relief by expunction, as sought by the amendment, was not of the substance of the relief primarily sought. It was ancillary merely to the main relief, and designed to make that relief more effective and complete, by removing a conflicting and improper memorial. The prayer for expunction might have been disregarded entirely, without in any way affecting the result.
It may be noted in passing that these objections were made by demurrer to the amended petition. The usual practice, it seems, is to regard the alternative writ as the first pleading in the cause (Longshore v. State ex rel. Turner, 137 Ala. 636, 34 So. 684; Garrett v. Cobb. 199 Ala. 80, 74 So. 226; 26 Cyc. 426; 18 R. C. L. 340); and to address objections for insufficiency to the writ and not to the petition. (State ex rel. Dox v. Board, 10 Iowa, 157, 74 Am. Dec. 381; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; 18 R. C. L. 349, § 305; Tapping on Mandamus, 362; 26 Cyc. 464, 465). Whether this practice has been changed by section 4864 of the Code we need not now determine.
The demand made by petitioners on Judge Fountain, as president of the board, to do the several things embraced by the writ, was a sufficient demand upon the board. It was not necessary to repeat this demand to every member 19 A. E. Ency. Law [2d Ed.] 762, citing Chumasero v. Potts, 2 Mont. 255. Moreover, as to those matters, as well as to the matter of expunction, it appears with sufficient certainty, we think, that any demand for such action would have been unavailing and useless, in view of the conduct and proclaimed opinion of the majority members of the board, evincing a settled purpose not to perform. In such a case the law does not require a demand. 26 Cyc. 182, and cases cited in notes 16 and 17.
Again, as to the recordation of the act of allowance, it being a duty specifically enjoined by law, the authorities hold that demand for performance, before suit, is not required. 26 Cyc. 182.
The action of the trial court in denying the motion of respondents to transfer the cause to the equity side of the court is not reviewable on appeal; however, the question may be raised or presented, and the assignment of error in that behalf is without merit. Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916.
We have considered all of the questions raised by appellants, and find no error for reversal.
The order and judgment of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.