per. — The petition shows that respondent has not refused to proceed to one final judgment in the suit, so that an appeal may be taken, but that plaintiff seeks to control, by mandamus, the course of procedure and rulings by which respondent may arrive at a final judgment, which this court has no jurisdiction to do. State v. Morris, 86 Tex. 226 [ 86 Tex. 226]. This court cannot anticipate what ruling respondent will make nor assume that respondent will not modify his opinion upon the hearing so as to rule according to law.
Such relief cannot be obtained in a mandamus proceeding for the Supreme Court has no jurisdiction or power to reverse or vacate a judgment rendered by Court of Civil Appeals or any inferior Court and substitute in place of such judgment its own decision on the merits of the case. Little v. Morris, 10 Tex. 263; Matlock v. Smith, 96 Tex. 211; Aycock v. Clark, 94 Tex. 375; State ex rel. Johnson v. Morris, 86 Tex. 226; Ewing v. Cohen, 63 Tex. 482; Ex parte Newman, 14 Wall., 152; Newnom v. Neill, 101 Tex. 42; Maxwell v. Hall, 114 Tex. 319; McDowell v. Hightower, 111 Tex. 585. The jurisdiction of the Court of Civil Appeals in the instant case depends upon a question of fact.
in other jurisdictions: "Appeal or writ of error alone will accomplish the purposes of review and correction, and mandamus will not be allowed to supplant these, in accordance with the general principle that where relief may be obtained through the ordinary channels of the law the writ is not an appropriate remedy: Ex parte Morris, 44 Ala. 361; Ex parte Southern Telegraph Co., 73 Ala. 564; Ex parte Williamson, 8 Ark. 424; Early v. Mannix, 15 Cal. 149; People v. Clerk of District Court, 22 Colo. 280 ( 44 P. 506); Shine v. Kentucky Cent. R. Co., 85 Ky. 177 ( 3 S.W. 18); State v. New Orleans District Court, 10 La. Ann. 420; State v. New Orleans District Court, 12 La. Ann. 342; Olson v. Muskegon Circuit Judge, 49 Mich. 85; Haney v. Muskegon Circuit Judge, 101 Mich. 392; State v. Lubke, 85 Mo. 338; State v. Megown, 89 Mo. 156 ( 1 S.W. 208); People v. Superior Court, 18 Wend. (N.Y.) 575; Ex parte Bostwick, 1 Cow. (N.Y.) 143; People v. Lott, 42 Hun (N.Y.), 408; Ewing v. Cohen, 63 Tex. 482; State v. Morris, 86 Tex. 226 ( 24 S.W. 393); State v. Allen, 8 Wn. 168 ( 35 P. 609); State v. Superior Court, 24 Wn. 438 ( 64 P. 727); State v. Taylor, 19 Wis. 566; Ex parte Baltimore, etc., R. Co., 108 U.S. 566 ( 2 Sup. Ct. 876); In re Morrison, 147 U.S. 14 ( 13 Sup. Ct. 246); American Construction Co. v. RailwayCo., 148 U.S. 372 ( 13 Sup. Ct. 758); United States v. Swan, 13 C.C.A. 77, 65 Fed. 647." 98 Am. St. Rep. 892, note.
The writ of mandamus can not be made to perform the office of a writ of error or appeal. Matlock, Miller Dycus v. Smith, 96 Tex. 211; Aycock v. Clark, 94 Tex. 375; State v. Morris, 86 Tex. 226 [ 86 Tex. 226]-230; Little v. Morris, 10 Tex. 264 [ 10 Tex. 264]-268; Ex Parte Brown, 116 U.S. 401, 29 Law Ed., 676; Ex Parte Morgan, 114 U.S. 174, 29 Law Ed., 135; Ex Parte Flippan, 94 U.S. 348, 24 Law Ed., 194; Ex Parte Loring, 94 U.S. 418, 24 Law Ed., 165; Ex Parte Newman, 14 Wall., 152, 20 Law Ed., 877; Ex Parte Milwaukee R.R., 5 Wall., 188, 18 Law Ed., 676; United States v. Addison, 22 How., 174, 16 Law Ed., 304; Ex Parte Burtis, 103 U.S. 238, 26 Law Ed., 392. The writ of mandamus is an extraordinary remedy; and if the party complaining has an adequate common law or statutory remedy he will not be awarded the peremptory writ of mandamus.
— The trial court erred in overruling respondents' exceptions to relators' petition, because said petition shows on its face that relators were attempting to use the powers of the court to force these respondents, the county judge, the county commissioners, and constituting the County Commissioners' Court of Trinity County, Texas, to perform acts that involved the exercise of judicial and official discretion, and did not ask for an order requiring defendants to perform any ministerial act. As to judicial discretion: Sansom v. Mercer, 68 Tex. 488; Ewing v. Cohen, 63 Tex. 482; Bledsoe v. International G. N. R. Co., 40 Tex. 537; State v. Morris, 86 Tex. 226 [ 86 Tex. 226]; Puckett v. White, 22 Tex. 563; Durrett v. Crosby, 28 Tex. 694; Luckey v. Short, 1 Texas Civ. App. 5[ 1 Tex. Civ. App. 5]; Continental Natl. Bank v. Weems, 69 Tex. 492. On collateral attack of judgments: Willis v. Ferguson, 46 Tex. 496; Bogges v. Howard, 40 Tex. 153 [ 40 Tex. 153]; Thouvenin v. Rodrigues, 24 Tex. 468 [ 24 Tex. 468]; Campbell v. Upson, 81 S.W. 358; Houston T. C. R. Co. v. DeBerry, 34 Texas Civ. App. 180[ 34 Tex. Civ. App. 180]; Carson v. Taylor, 19 Texas Civ. App. 177[ 19 Tex. Civ. App. 177]; Matlock v. Smith, 96 Tex. 211 [ 96 Tex. 211].
With the question of whether or not the judgment actually rendered by the District Court is erroneous, or even void, as applicants contend, we have nothing to do, since "mandamus will not lie to control the exercise of the discretion of inferior courts, and, where such courts have acted judicially upon a matter properly presented to them, their decisions can not be altered or controlled by mandamus from the Superior court." (State v. Morris, 86 Tex. 226 [ 86 Tex. 226], and authorities there cited.) As to our lack of jurisdiction to entertain the application, insofar as the main relief sought is concerned, we have no doubt.
The second indictment charging the petitioner with the robbery-intentional killing of Deroo also embraced the lesser included offense of grand larceny under the facts in this case. See Morris v. State, 97 Ala. 82, 12 So. 276 (1893); Kelly v. State, 235 Ala. 5, 176 So. 807 (1937); Twitty v. State, 50 Ala. App. 246, 278 So.2d 247 (1973); Cordial v. State, 389 So.2d 170 (Ala.Cr.App. 1980). Once the jury was impaneled and sworn and the indictment was read, jeopardy had attached on that lesser offense. Ex parte Collins, supra; Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).
An order which must be appealed from before it is ignored can hardly be characterized as 'void' and binding on no one. Illustrative of the cases cited by respondents are: Ewing v. Cohen, 63 Tex. 482; State ex rel. Johnson v. Morris, 86 Tex. 226, 24 S.W. 393; Steele v. Goodrich, 87 Tex. 401, 28 S.W. 939; Glenn v. Milam, 114 Tex. 160, 263 S.W. 900; Glidden Stores v. Boyd, 116 Tex. 172, 287 S.W. 1093; Aldridge v. Conner, 120 Tex. 243, 37 S.W.2d 725; Ben C. Jones Co. v. Wheeler, 121 Tex. 128, 45 S.W.2d 957; Palmer Publishing Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158; Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627; City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028; Brazos River Conservation and Reclamation Dist. v. Belcher, 139 Tex. 368, 163 S.W.2d 183; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805 and Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648. Here, the relators have applied for a writ of mandamus in accordance with a statute which is plain in wording and should be certain in application.
It appearing that the subject matter of this suit is also in litigation in the District Court of Travis County, Texas, no mandamus can be awarded herein. It has been universally held that a mandamus cannot be awarded where a relator has an adequate remedy at law or where he has a remedy by appeal. Steele v. Goodrich, 87 Tex. 401, 28 S.W. 939; State of Texas v. Morris, 86 Tex. 226, 24 S.W. 393; Arkansas Bldg. Loan Assn. v. Madden, 91 Tex. 461, 44 S.W. 823. In the case of Greene v. Robison et al. we mentioned the fact that in four of the six cases involving the validity of the Relinquishment Act the land had been awarded and sold to the owners of the soil prior to the effective date of said Relinquishment Act, and that in two of them the land had been awarded and sold after the effective date of said Relinquishment Act.
In such a case, and to the extent that such discretion is employed, the Supreme Court may not exercise original jurisdiction to impose its own judgment. State v. Morris, 86 Tex. 226, 24 S.W. 393. To the extent mentioned, the orders about which complaint is made were not void; they may have been improvidently granted or otherwise erroneous and, so, voidable, but their correction, if needed, must come through procedure foreign to a prayer invoking the original jurisdiction of the Supreme Court.