In my opinion this appeal should not be dismissed; that to dismiss it is, among other unjustifiable effects, to overrule Ex parte Campbell, 130 Ala. 171, 182, 183, 30 So. 385, and Mayfield v. County Com'rs, 148 Ala. 548, 550, 551, 41 So. 932. There is no reason to overturn the settled practice under which this appeal was taken. The error of the dismissal now entered is further emphasized by the fact that Code 1896, § 431, as construed in Ex parte Campbell, supra, was re-adopted as section 2843 of the Code of 1907, whereupon the construction then given section 431 of the Code of 1896 has been made a part of the present section 2843. 11 Mich. Dig. Ala. Rep. p. 1114, collating numerous authorities. This very material feature has not been accorded deserved effect in this cause.
In Ex parte Campbell, supra, it was plainly decided that the judicial act of ordering rule nisi to issue was a "judgment" within the purview of Code 1896, § 431, now Code 1907, § 2843; and the correctness of this view is further confirmed by the provisions of Code 1896, § 432, now Code 1907, § 2844, to which reference is made in the Campbell Case opinion at page 185 of 130 Ala., at page 385 of 30 South. In the Mayfield Case, supra, the court was careful, as it ought always to be to discriminate the initial statutory function of the judges from the like function of the court — this in accordance with the like discrimination fully stated at page 185 of 130 Ala., at page 385 of 30 South. Since a rule nisi is a rule nisi whether it issues in a proceeding for mandamus, prohibition, certiorari, or otherwise, there is no foundation upon which to rest a distinction between rules nisi in such several proceedings.
Reading the present order of dismissal in the light of the Mayfield Case, 148 Ala. p. 551, 41 So. 932, one rather startling effect is to leave section 2843 no operation whatsoever, since it was held in the Mayfield Case, supra — and that ruling is not now questioned — that from the "final judgment" of the court (not the judge) on petitions for mandamus, prohibitions, etc., a right of appeal is provided by Code 1896, § 2827, now section 4866 of the Code of 1907, a statute also readopted, without change, in the Code of 1907. 11 Mich. Dig. Ala. Rep. p. 1114. I, therefore, dissent from the dismissal of this appeal.
ANDERSON, C. J., concurs in the foregoing opinion.