Opinion
1 Div. 653.
December 22, 1955.
Appeal from the Circuit Court of Washington County, Emmett F. Hildreth, Special Judge.
Scott Porter, Chatom, for appellant.
A petition for mandamus can be amended after judgment where no change in remedial process is sought. Ex parte Hennies, 33 Ala. App. 229, 34 So.2d 17.
Adams, Gillmore Adams, Grove Hill, for appellee.
Where petitioner for mandamus suffers final judgment to be taken against him in trial court, which judgment is affirmed on appeal, he cannot thereafter in trial court amend the original petition, there being nothing left before trial court for subsequent amendment. 17 Am.Jur. 59, 90; First Nat. Bank of Woodbine v. Board of Sup'rs of Harrison County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R. 570; Code 1940, Tit. 7, § 1092; Ex parte Hennies, 33 Ala. App. 229, 34 So.2d 17.
This is an appeal by Arthur E. Jordan from an order made by a special judge sitting in the first judicial circuit in Washington County. It is dated August 27, 1955, and orders and adjudges a "paper writing filed June 16, 1955 by Arthur E. Jordan entitled 'Amendment to Petition as Last Amended' be and same is hereby disallowed and the same is stricken from the record". It then taxes the costs against him.
The appeal has to do with the same transaction referred to in a former appeal to this Court in a suit wherein this appellant sought a writ of mandamus to compel this appellee to extend its electric service to him. The court sustained a demurrer to the petition and finally dismissed it. On appeal to this Court the judgment of the circuit court was affirmed. Jordan v. Clarke-Washington Electric Membership Corp., 262 Ala. 581, 80 So.2d 527.
After that time there was nothing then pending in the court, but the petitioner filed in that court what he termed an amendment to the petition as last amended. There was no petition as last amended in the court. Thereupon this appellee made a motion to strike the so-called amendment, which motion the court granted. It had no place in the court and the court had the right to dismiss it as spurious and impertinent. When an order of that kind is made, it is not such a judgment as will support an appeal. But in order to obtain a review a petition for mandamus to this Court might be available. Ex parte Burns, 261 Ala. 217, 73 So.2d 912; Ex parte Robinson, 231 Ala. 503, 165 So. 582; Ex parte City Bank Trust Co., 200 Ala. 440, 76 So. 372.
The motion to dismiss the appeal is also based upon other grounds which we do not consider necessary to discuss in view of the result reached.
The motion to dismiss should be granted and the appeal dismissed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Motion to dismiss granted; appeal dismissed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur.