[Ex parte Merritt.] APPEAL from the City Court of Montgomery in Equity. Heard before the Hon. A. D. SAYRE. The facts in this case are sufficiently stated in the opinion. GUNTER & GUNTER, for petitioner.-Mandamus is the proper remedy to compel the vacation of a decree dismissing a bill as to several defendants, as there is no adequate remedy prescribed by appeal, and there may be a failure of justice otherwise.-Code, 427 and citations; Ex parte Fecheimer, 103 Ala. 154 (discharging injunction); Bridgeport v. Bridgeport, etc., 104 Ala. 276, (order to enforce judgment); Ex parte Sayre, 95 Ala. 288, (discharging an injunction); Ex parte S. & N. Ry., 65 Ala. 599. WHITSON & DRYER, J. M. FALKNER and GEORGE W. JONES, contra. SIMPSON, J.-It appears from the record that the petitioner, Fisher H. Merritt, filed a bill in the city court of Montgomery, sitting in equity, against the Alabama Pyrites Company, Percival H. Smith and O. A. Smith, in connection with other defendants, that said parties filed in said court a motion to dismiss said bill as to them, on the grounds therein stated, that, upon the hearing of said motion, a decree was rendered to the effect that said bill, so far as it sought relief against said parties was without equity, and "that the same do stand dismissed, at the cost of complainant." The petitioner prays for a writ of mandamus "ordering the vacation of said order of dismissal, and the restoration of said defendants as parties to said petitioner's bill.” The writ of mandamus is a remedial writ granted where there is a specific legal right, and there is no other legal remedy which is adequate for the enforcement of the right. In its application to judges, and judicial proceedings, while cases sometimes touch so closely on the border line as to render it difficult to harmonize them all, on a clear line of principle, yet there is a great uniformity in stating what that principle is, to-wit: that [Ex parte Merritt.] the sole office of the writ is to force the judge to act, and not to direct him to render a particular judgment. It can compel him to hear and decide a controversy which is within his jurisdiction, but it cannot direct or control the exercise of his judicial discretion. It is not its office to correct errors.-14 Am. & Eng. Ency. Law (2d ed.) p. 113; Ex parte Jones, 1 Ala. 15; State of Ala. ex rel Pinney v. Williams, 69 Ala. 311, 316; Ex parte The City Council of Montgomery, 24 Ala. 98; Ex parte Elston, 25 Ala. 72; Ex parte Parker, 120 U. S. Rep. 737, 743; Lamar v. Commissioners' Court, 21 Ala. 772, 778; Appling, Judge of Probate v. Bailey, Assignee, 44 Ala. 333. It has been allowed, in cases where a non-resident, under the old statute, failed to give security for costs, to force the dismissal of a case, because this was an absolute right, given by statute, and there was no remedy by appeal.-Ex parte Cole, 28 Ala. 50; First National Bank of Anniston v. Cheney, 120 Ala. 117. In the last cited case Chief Justice BRICKELL states that as a general rule "mandamus will not be granted for the correction of an error, arising in the progress of a suit, which can be revised on appeal after final judg ment," and goes on to show that these cases have been made an exception to the general rule, because the defendant had not adequate remedy, if he is forced to litigate with a non-resident, without the indemnity against costs which the statute guarantees to him, as absolute right. It has been granted where a case had been, without authority of law, stricken from the docket, in order to reinstate the same.-Ex parte State ex rel. Stow, 51 Ala. 69. Also where a court, under an unconstitutional ordinance set aside a judgment, rendered at a previous term. Lawson v. Moore, 44 Ala. 275. Also where a court, without authority of law, at a subsequent term, set aside and vacated a final decree rendered at a previous term, for the purpose of reinstating the same; as the court had no jurisdiction or control over the decree, after the expiration of the term at which it was rendered.-Ex parte Cresswell, 60 Ala. 378; Cochran v. Miller, 74 Ala. 50. [Ex parte Merritt.] Also to reinstate a case which was impropely allowed to abate after the death of the plaintiff, because the heirs or personal representatives had a specific right to be made parties and prosecute the suit, and after the suit was abated had no standing in court to remedy the matter either by appeal or otherwise.-The State ex rel Nabors' Heirs, 7 Ala. 459. Also to reinstate an ancillary attachment, improperly dismissed, without notice to the defendant.-Boraim v. DaCosta, 4 Ala. 398. Also where the court required plaintiff to remit the amount of $1,000.00 damages assessed by the jury, or a new trial would be granted on payment of costs, and, after failure to remit the $1,000.00, and after the costs had been paid, by the other party, the case was stricken from the docket, as this was "not technically speaking a judgment," and not revisable.-Stephenson v. Mansony, 4 Ala. 317, 320. Also where a case, still sub judice was improperly stricken from the docket.-Ex parte Lowe, 20 Ala. 330. On the other hand it has been denied for the purpose of reinstating a bill which had been dismissed on account of the plaintiff's failure to secure costs, because if erroneous it could be corrected on appeal.-Ex parte Hendree, 49 Ala. 360. And it has also been denied where the action of a probate judge in issuing a liquor license was sought to be overturned, the reason being that he acted judiciously, and the exercise of that judicial power could not be controlled by mandamus.-Dunbar v. Frazer, 78 Ala. 538, and cases there cited. From all these cases, and others which might be cited, we can find no warrant for interfering, by mandamus, in a case where a motion to dismiss a bill for want of equity and other grounds, has been regularly entertained by a judicial officer in a case within his jurisdiction, and a decree rendered passing upon the equity of the bill, and dismissing the bill, when the matter complained of can be revised on appeal, either under the statute in regard to interlocutory decrees, or from the final decree in the case. Without expressing any opinion, as to the [Northern Alabama Railroad Co. v. Shea.] right of appeal in this case from the interlocutory decree, there is no doubt that the matter can be revised on appeal from the final hearing of the case.-Ex parte Woodruff, 123 Ala. 99; Bickley v. Bickley, 129 Ala. 403. The petition for a writ of mandamus is denied. MCCLELLAN, C.J., TYSON and ANDERSON, J.J., concur ring. 1. 2. 3. Northern Alabama Railroad Co. v. Action to recover Damages for Personal Injuries. Averment of negligence; sufficiency thereof.-A count that avers Same; same; same; plaintiff need not aver that he had made 142 119 144 152 [Northern Alabama Railroad Co. v. Shea.] ciently charges negligence; and it in effect avers the surname of the engineer and that his christian name is unknown to the plaintiff. It is not necessary for plaintiff to aver that he had made diligent effort to ascertain the engineer's full name, but had failed to ascertain it. 4. Expert testimony; competency to testify as to condition of railroad track.-A witness who is shown to be skilled and experienced in respect of track conditions and track constructions, is competent to give opinions as to the defective and unsafe condition of a railroad track. 5. Same; case at bar.-A witness who had had long experience as a brakeman, whose duties had to do with the regulation of the speed of the train under the varying circumstances incident to a railway, according to curve, grade, etc., is qualified to give his opinion on each of these matters, and to state that a train, at a particular time and place, was running at a dangerously high speed. 6. Motion for a new trial on ground that verdict was contrary to evidence. Where each count of a complaint is supported by tendencies of the evidence, which make a case, under each, for the determination of the jury, a motion for a new trial on the ground that the verdict was contrary to or not sustained by the evidence, is properly overruled. 7. Proof of averment in complaint; common knowledge of jury. An averment in a complaint that "the rails were insecurely fastened to the cross ties" is sufficiently proved, if the evidence shows that ties were rotten, the jurors common knowledge being sufficient to afford them necessary assurance that rotten wood will not hold a rail or spike. 8. Defective track conditions; trainmen do not assume risks thereof. It is not the duty of trainmen but of other employes to see that the track is safe and kept in proper condition, and, therefore, trainmen do not assume the risk of defective track conditions. APPEAL from the Circuit Court of Colbert. Tried before the Hon. ED B. ALMON. This was an action brought by the appellee, R. E. Shea, against the appellant. The Northern Alabama Railway Company, to recover $1,999, as damages for personal injuries sustained by the plaintiff, while acting as a brakeman in the service of the appellant corporation. The 5th, 6th and 8th counts of the amended complaint (demurrers having been sustained to the other counts) con |