7

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2

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agreement not to file papers in a pending suit, when the opposing counsel has been allowed to file an amended complaint in contravention thereof;' to reinstate a cross-bill dismissed before the final termination of the cause; to revive a suit; to set aside an order for a rehearing when it was granted improperly; to dismiss a suit brought by a non-resident without giving security for costs; to grant an order for a rehearing which was improperly refused; to set aside an order improperly granted restraining a plaintiff from continuing his suit at law till a motion for an election therein was disposed of; to allow temporary alimony and attorneys' fees to a wife during the pendency of a suit for a divorce and before permanent alimony had been set apart for her; to reinstate a cause improperly stricken from the docket; to allow an amendment to a complaint; 10 to change the orders of a court relative to giving bonds in attachment proceedings; " to vacate in attachment proceedings an order to pay over the proceeds of a sale to the defendant on a claim of exemption, when the order was wrong and the defendant was insolvent; 12 to correct the error in the ruling of a judge in improperly refusing in vacation to grant a rehearing of a demurrer, which he had then sustained to the defendant's petition for a rehearing, when a judgment had been taken by default. Notwithstanding these decisions there are other decisions from the same court declining to interfere in such cases. A mandamus to compel the dissolution of an injunction, upon the filing of the answer, was refused. The court said that it would

S

9

1 Lawrence, Ex parte, 34 Ala. 446. 2 Thornton, Ex parte, 46 Ala. 384. 3 Ware, Ex parte, 48 Ala. 223. 4 North, Ex parte, 49 Ala. 385; Bruce v. Williamson, 50 Ala. 313.

5 Cole, Ex parte, 28 Ala. 50; Robbins, Ex parte, 29 Ala. 71.

6 Walker, Ex parte, 54 Ala. 577. 7 Alabama, etc. Co., Ex parte, 59 Ala. 192.

13

8 King, Ex parte, 27 Ala. 387. 9 State ex rel. Stow, 51 Ala. 69; Abrams, Ex parte, 48 Ala. 151. 10 South. & N. Ala. R. R., Ex parte, 65 Ala. 599; Lee v. Harper, 90 Ala. 548.

11 Haralson, Ex parte, 75 Ala. 543. 12 Barnes, Ex parte, 84 Ala, 540. 13 Chastain v. Armstrong, 85 Ala. 215.

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not interfere with interlocutory orders, and that such an interference would be an intolerable nuisance.1 The same reason seems to have controlled the court in refusing a mandamus to compel the lower court to strike a case from the docket. The court has refused to interfere by a mandamus to compel the court to accept the verdict of a jury,3 or to grant a change of venue in a criminal case, because such matters were within the discretion of the court. A mandamus to vacate an order suppressing depositions was refused. The reason assigned was, that the matter would come up on appeal, and that it would embarrass the court to review in this manner all of the decisions of the lower courts. The court has lately shown a disposition to decline any interference in the case of interlocutory orders. It said that it had gone as far as it was willing in this direction, and was inclined to restrain such jurisdiction, and that it would not award a mandamus when full relief could be obtained by appeal, writ of error or otherwise. The improper allowance of an amendment to the pleadings was considered to be no ground for a mandamus. The force of this decision was, however, broken by a further statement, that in a proper case the court might grant a mandamus to compel the allowance of an amendment to the pleadings. A mandamus was refused to compel the court to vacate an order, made at the instance of one of the liti gants, setting aside an agreed statement of facts, and to compel a judge to hear and determine a motion, which he had overruled on the ground that he had no jurisdiction to entertain it. In the two last cases the court said that such rulings could be reviewed on appeal from the final judgments.

98.

1 Montgomery, Ex parte, 24 Ala.

2 Garland, Ex parte, 42 Ala. 559. 3 Henry, Ex parte, 24 Ala. 638.

4 Banks, Ex parte, 28 Ala. 28.

5 Elston, Ex parte, 25 Ala. 72.

6 South. etc. R. R., Ex parte, 65 Ala. 599.

7 Hayes, Ex parte (Ala., April 9, 1891), 9 South. Rep. 156.

8 Hurn, Ex parte (Ala., June 16, 1891), 9 South. Rep. 515.

§ 200. Interlocutory orders of courts may in Michigan be reviewed by writs of mandamus.-In Michigan the rule, that the interlocutory orders in a suit will not be revised or corrected by mandamus, has never been recognized. The writ has been issued: to vacate an order vacating the service of process on the defendant;' to vacate an order rescinding an order of removal of a cause; to rescind an order to a garnishee, founded on his return, to pay over money and certain notes to a receiver appointed by the court, who was instructed to hold such articles till further orders, because the return did not justify such an order;3 to vacate an order quashing an attachment sued out against two out of six defendants, because the affidavit was wrongly held to be insufficient; to set aside a default without the payment of costs as required by the court; to set aside an injunction; to vacate an order restoring an appeal which had been dismissed; to vacate the service of a civil capias which was wrongfully issued; to vacate the confirmation of the report of commissioners appointed to condemn land, because the confirmation was made at a time when the court could not lawfully make it; to set aside the service of process on a person attending court as a witness in another case, which the lower court had refused to do; 10 to vacate the service of a civil capias wrongfully issued;" to vacate an order restraining competent proceedings in a

1 People v. Wayne Circuit (Judge), refused, unless the court is con22 Mich. 493. vinced of the necessity of a sum

2 People v. Wayne Circuit (Judge), mary interference. Mills v. Bre39 Mich. 115. voort, 77 Mich. 210; Detroit (City) v. Hosmer, 79 Mich. 384.

3 People v. Cass Circuit Judge, 39 Mich. 407.

4 People v. Bay Co. Cir. Ct. (Judge), 41 Mich. 326.

5 Arno v. Circuit Court, 42 Mich. 362.

6 Tawas, etc. R. R. v. Cir. Judge, 44 Mich. 479; Van Norman v. Cir. Judge, 45 Mich. 204. A mandamus to set aside an injunction will be

7 Ellair v. Judge, 46 Mich. 496. 8 Baldwin v. Branch Cir. Judge, 48 Mich. 525.

Michigan C. R. R. v. Tuscola Co. (Prob. Judge), 48 Mich. 638.

10 Mitchell v. Huron Co. Judge, 53 Mich. 541.

11 Baldwin v. Branch Ct. Judge, 48 Mich. 525.

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court of co-ordinate jurisdiction; 1 to set aside a verdict and grant a new trial, on account of the misconduct of the jury;2 to set aside an order, granted on a mere motion, which set aside a decree; to vacate an order setting aside the service of a subpoena and the subsequent proceedings in a foreclosure suit; to grant a new trial; to vacate an order punishing for contempt of court, and to restrain further steps in enforcing an injunction; to vacate a nonsuit; to a chancellor to hear and decide a cause himself, wherein he had entered a decree upon the findings of a jury. The court has declined to enter into the investigation of the merits of a chancery case till there was a final judgment and the case was brought regularly before the court; and it will interfere to disturb the action of a judge in equity only in a case of exigency demanding prompt action.10 A mandamus lies in Michigan to correct the action of the trial court in ordering the plaintiff to give a bill of the particulars of his demand, if such order goes beyond what is properly required to be stated in such a bill." Where, however, a party was convicted of murder, which judgment was reversed and a new trial ordered, whereupon the court admitted him to bail, but during the second trial ordered him into custody, a mandamus was refused to compel the trial court to admit. him again to bail.12

§ 201. Mandamus cannot take the place of an appeal or writ of error.- Under the general rule, that a man

1 Maclean v. Speed, 52 Mich. 257. 2 Churchill v. Emerick, 56 Mich. 536.

3 York v. Ingham, 57 Mich. 421. 4 Low v. Mills, 61 Mich. 35.

5 Gray v. Barton, 62 Mich. 186. The discretion of a court in refusing a new trial will only be interfered with to correct an abuse thereof. The abuse of discretion must be gross and palpable to justify an interference in any case. Detroit, etc. Co. v. Gartner, 75 Mich. 360.

6 Scott v. Chambers, 62 Mich. 532.

7 Lindsay v. Circuit Judge, 63 Mich. 735.

8 Brown v. Buck, 75 Mich. 274. 9 Chesebro v. Montgomery, 70 Mich. 650.

10 Detroit, etc. R. R. v. Newton, 61 Mich. 33.

11 Van Vranken v. Gartner, 85 Mich. 140.

12 Hull v. Reilly, 87 Mich. 497; 49 N. W. Rep. 869.

damus will not lie where the law has provided another remedy, this writ will not lie to review or correct a judgment or decree, where the law provides a remedy by appeal or writ of error. The inconvenient delay attending an appeal is no ground for a mandamus. A mandamus will not be allowed to usurp the functions of an appeal, a writ of error or a certiorari,3 or to anticipate or forestall judicial action. Because the action of the court was a final judgment from which an appeal lay, the writ of mandamus