Counsel for appellee, after dismissal of the cause, filed an extended brief, seeking a reconsideration of the judgment of dismissal, and insists that the foregoing holding is erroneous. Reliance is had upon the provisions of section 2843 of the Code of 1907, authorizing appeals "from the judgment of the judges of the circuit and city courts and county courts of law and equity, on application for writs of certiorari, supersedeas, quo warranto, mandamus, and other remedial writs," and the cases of Ex parte Campbell, 130 Ala. 177, 30 So. 385, Mayfield v. Court of County Commissioners, 148 Ala. 548,41 So. 932, as well as other authorities, which will be hereinafter noted, are cited.
Ex parte Campbell dealt with the granting of the rule nisi on application for a writ of prohibition. The order of the judge granting the rule expressly prohibited the respondents *Page 316 to the petition from issuing and selling the bonds described therein, as well as from doing anything enjoined upon them under the provisions of the act there in question. This was of course a judgment entered by the judge in granting the rule, and came clearly within the provisions of the foregoing section of the Code. The opinion points out that in cases of that character, although this specific language may not have been embraced within the order for the rule nisi, yet the granting of the rule itself in prohibition cases would have had the same effect, citing Ex parte Ray, 45 Ala. 20, and 16 Ency. of Plead. Prac. 1139, which fully sustain this view. The Campbell Case therefore cannot be considered an authority against the conclusion here reached.
The case of Mayfield v. Court of County Commissioners, supra, dealt with a petition for certiorari, which was dismissed, and is without direct application to the instant case, and is only relevant in its reference to the Campbell Case, supra, and to the provisions of the Code concerning appeals. Sections 2843 and 4866, Code 1907.
The case of Smith v. Gordon, 138 Ala. 181, 35 So. 58, cited in brief, was a final judgment in a mandamus proceeding. The case of Lusk v. Capehart, 129 Ala. 599, 30 So. 31, was an appeal from a final judgment on petition for certiorari. Commissioners' Court v. State ex rel. Bowlin et al., 151 Ala. 561,44 So. 465, was for the granting of the rule nisi on a petition for a writ of prohibition, and comes within what was said in regard to Ex parte Campbell, supra. McLendon v. Empire Mining Co., 199 Ala. 482, 74 So. 937, was from a judgment granting a peremptory mandamus. Mills v. Court of County Commissioners, 204 Ala. 40, 85 So. 564, was from a final judgment upon a petition for certiorari. Alabama Interstate Power Co. v. Mt. Vernon-Woodbury, etc., Co., 186 Ala. 622,65 So. 287, involved several appeals, one of which was a writ of prohibition, which has been previously discussed. State ex rel. Crow v. Crook, 123 Ala. 657, 27 So. 334, was an appeal from a final order in a mandamus proceeding rendered by a judge in vacation, which was held unauthorized, the judgment void, and the appeal dismissed.
In Boraim v. Da Costa, 4 Ala. 393, speaking of the practice prevailing in this state as to mandamus proceedings, the court said that it is usual when the applicant has made out a probable cause to grant a rule upon the defendant to show cause why the writ should not issue. In Merrill on Mandamus, § 250, it is pointed out that it is proper that the court should enter a rule to show cause why the writ should not issue, or an alternative writ be granted, and that it is discretionary with the court as to which order it will grant. The court may grant an alternative writ in the first instance, if it deems it more conducive to public justice, and to prevent delays. Life Fire Ins. Co. v. Adams, 9 Pet. 571, 9 L.Ed. 234. An alternative writ of mandamus commands the defendant to do the thing required, or show cause why it should not be done, and to this writ the defendant must either do the thing required, demur, or make return. Swan v. Gray, 44 Miss. 393; Potts v. State,75 Ind. 336. The rule or order to show cause is not considered a pleading in mandamus proceedings, and it has been held that it need not comply with the statutory requirements relating to the alternative writ. 36 Cyc. 471. See, also, Spelling, Extraordinary Relief, vol. 2, 1365-1369.
Where merely a notice to show cause is issued, it is in the nature of a summons or citation, and nothing more. 26 Cyc. 472. It is stated that the general practice is for the issuance of an alternative writ ex parte on filing of the petition without a prior order to show cause, but, as shown in Da Costa's Case, supra, the usual practice in this state is to first enter an order to show cause.
In the New York courts it has been held that an alternative mandamus is in the nature of an order to show cause, and, as it does not affect any substantial right, determining nothing against the respondent or in favor of the relator, it will not support an appeal. People ex rel. Levenson v. O'Donnell,99 App. Div. 253, 90 N.Y. Supp. 961; 26 Cyc. 502.
An alternative writ of mandamus usually commands the respondent to do the thing required, or show cause why it should not be done. The granting of such a writ may, under certain circumstances, be considered a judgment within the meaning of section 2843 of the Code, but, as before stated, the judge may in his discretion grant a rule to show cause, and set the matter down for hearing without the issuance of the further order, or he may grant the alternative writ with directions to the respondent concerning the matter in controversy. If he merely grants the rule to show cause, it serves only the purpose of a summons or citation, determines no matter of substantial right, either in favor of the relator or against the respondent.
It therefore clearly appears that merely a rule of this character could not be considered in the nature of a judgment of the judge within the meaning of the above-cited statute. Indeed, the statute referred to proceeds to state that such an appeal shall not operate as a supersedeas of the judgment unless bond is given, which language alone would very strongly indicate that any such judgment from which the respondent could prosecute an appeal must be one involving some substantial right, or from which he could suffer some inconvenience or injury.
In the instant case the circuit court merely granted the rule to show cause. This, and nothing more. It was but a citation to appear *Page 317 on a certain day, of no more benefit to the one party or injury to the other than a summons in an ordinary action at law.
Our research discloses no case of an appeal from a rule of this character, and we have previously pointed out that none of the authorities cited by counsel for appellant go to this length. The court has adjudged nothing, has made no ruling whatever, and there has therefore been no judgment of the judge from which the appeal may be prosecuted.
From what we have said in regard to the alternative writ of mandamus, as well as other illustrations which may be found in the citations here noted, there is ample room for the operation of section 2843 without giving application to a situation as here presented.
After an examination of the authorities, therefore, we are persuaded that the original view announced is correct, and that the appeal should be dismissed.
Appeal dismissed, and application for rehearing denied.
SAYRE, SOMERVILLE, GARDNER, THOMAS, and MILLER, JJ., concur.