# Ex Parte Hennies > Alabama Court of Appeals · June 30, 1947 · 33 Ala. App. 229 URL: https://www.frixlaw.com/law-library/cases/9824861 ## Case - **Full name:** Ex Parte Hennies. - **Court:** Alabama Court of Appeals - **Decided:** June 30, 1947 - **Citations:** 33 Ala. App. 229; 34 So. 2d 17; 1947 Ala. App. LEXIS 467 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Harwood - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9824861 ## Opinion text On Rehearing and Petition to Amend Original Petition. The petitioner has filed an application for rehearing and also a petition to amend his original petition. The respondent has filed his objections to the allowance of the amendment and moved its disallowance on the following grounds: “1. Because said amendment comes too late. “2. Because the time for pleading or amending is over and in that if said amendment were allowed would be a complete departure from the original cause of action. “3. Because the Court of Appeals is not bound by the rules of the Circuit Court with reference to amendments or pleadings. “4. Because said cause has already been finally submitted on demurrers, answers, oral argument before the court and submission to the court on briefs filed by both the petitioner and respondent. “5. Because it affirmatively appears that there was a judgment of record as shown by the attached exhibit to the original demurrer and answer filed by the respondent, duly certified by the clerk of the court. “6. Because the respondent has elected to proceed by mandamus 'and is, therefore, prohibited at this late date to file additional amendments seeking to change the entire cause of action. “7. Because the respondent has not been granted leave of court to amend his original petition. “8. Because the time for pleading or amendment is over and the respondent is prohibited ' from further pleading in said matter.” Application for Rehearing. In his application for rehearing the petitioner 'argues that certiorari was not an adequate remedy at the time of filing his petition, as he was then in jail, and that habeas corpus was inadequate inasmuch as he was at the time confined in jail under a mittimus regular on its face from a court that apparently had jurisdiction of the subject matter and the person; that habeas corpus is available only when a judgment is a mere nullity; and therefore could afford no relief in this case. The fact that petitioner was incarcex-ated under a mittimus regular on its face is pi'esented for the first time in petitioner’s brief in support of his application for a rehearing. The original petition for man *233 damus is entirely silent as to this point, as is the certified copy of the transcription of the evidence “and all that transpired at the trial in said cause”, which was attached to and made a part of the original petition; likewise this proposition was in no wise mentioned in petitioner’s brief filed on the submission of this cause. A rehearing will not be granted to consider a point not raised at the first hearing, Robinson v. Allison, 97 Ala. 596 , 12 So. 382 , 604, and questions not presented and discussed upon the original hearing will not be considered upon petition for rehearing. Henderson v. Huey, 45 Ala. 275 ; State v. Kidd, 125 Ala. 413 , 28 So. 480 ; State v. City of Birmingham, 160 Ala. 196 , 48 So. 843 ; Cooper v. State ex rel Hawkins, 226 Ala. 288, 289 , 147 So. 432 . It is our opinion that petitioner’s attempt to inject the above question into our consideration in his application for rehearing comes too late, and we must therefore refrain from determining the possible merits of such contentions. The application for rehearing in this cause is denied. Petition to Amend Original Petition. The petitioner has also filed an amendment to his original petition, setting UP additional grounds among which it is asserted that a mittimus was issued by the Honorable G. C. Boner, as Judge of the Jefferson County Court of Misdemeanors, the mittimus being set out, and that the petitioner was confined under said mittimus. This amendment to the original petition concludes with the following prayer: “Now Therefore; said petitioner prays that his foregoing amendment to this original petition be ordered filed and allowed; and further prays that upon his amended petition together with the original certified transcript of the proceedings of the record and other papers filed together with the original petition that his prayer to the amended petition be amended by adding the following thereto: “Wherefore your petitioner respectfully prays that in the alternative a writ of certiorari may be issued out of and under the seal of this Court directed to the Honorable G. C. Boner as Judge of the Jefferson County Court of Misdemeanors and to the said Jefferson County Court of Misdemeanors commanding and directing the said Court to certify and send to this Court on a day certain to be therein designated a full and complete record of all proceedings of the said Jefferson County Court of Misdemeanors in said contempt cause to the end that the said case may be reviewed and determined by This Honorable Court as provided by law; or that This Honorable Court shall make and enter an order to review said cause upon the record as here filed including the answer of the respondent; and if mistaken in the relief herein your petitioner prays for such other, further or different relief as he may be entitled.” In support of his effort to amend his original petition the petitioner asserts in his brief that such amendment should be allowed under the provisions of Section 1072 of Title 7, Chapter 30, Code of Alabama 1940, which section is as follows: “All applications for mandamus, prohibition, certiorari, or other remedial writ of a supervisory nature, shall be commenced by a petition verified by affidavit, in which the facts shall be stated as briefly and succinctly as the case will admit of; and any defendant may demur, plead, or answer as to all such matters as may be necessary to his defense; and any of the pleadings in such proceedings may be amended as often as occasion may require to attain the ends of justice, and by striking out parties and adding new parties; and upon the issues thus presented, the court shall award the relief, if any, to which the petitioner is entitled.” It is our opinion that Section 1072, supra, pertains to amendments while the proceedings are in progress. Under the provisions of Section 239, Title 7, Code of Alabama 1940, a court has the right to refuse the allowance of amendments after conclusion of the argument, when in its judgment the trial of the cause would be unreasonably delayed, or when in its judgment injustice would result. The absence in this section *234 of any provision pertaining to amendments after judgp'ient we think significant. A substantial number of jurisdictions are committed to the view that amendments are not permitted after rendition of judgment. See 41 Am.Jur., Pleadings, Section 297, and cases there cited. To permit the amendment sought 'in this case would, under the prayer in the amendment, work an entire change in the .remedial process, and after judgment rendered on the original petition change that proceeding from mandamus to certiorari. The function of the writ of mandamus is compulsory, while that of certiorari is revisory. We have found no precedent for the allowance of the amendment sought under the conditions of this case. We feel certain none can be found among the decisions of this State. On the other hand, in the recent case of Jones v. Jones, Ala. Sup., 31 So.2d 81 , the appellant had been adjudged in contempt for failure to pay alimony. From the decree adjudging him in contempt the appellant appealed to the Supreme Court. On submission the appellant also prayed for an alternative writ ,of mandamus in the event the appeal was not found to be the proper remedy. The appeal was dismissed for the reason that in this jurisdiction contempt proceedings are not reviewable by appeal, and the petition for the alternative writ of mandamus was .denied because of the existence of othef adequate remedies in that case certiorari. After the rendition of the above judgment the appellant then instituted a new and seperate proceeding seeking review by certiorari. Ex parte Jones (Jones v. Jones), Ala.Sup., 31 So.2d 314 . A certified copy of the record of the proceedings below having been brought before the Supreme Court in connection with the first proceeding, no additional certified copy of the record of the proceedings in the lower court was required in the second proceeding in cer- . tiorári. It must be concluded that the remedial proceedings followed in the Jones cases, supra, were considered the proper procedural steps in a situation highly similar to the one now under consideration. We therefore conclude that the petition to amend the original petition should be denied, and it is so ordered. Application for rehearing overruled. Petition to amend original petition denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9824861. Public record. Not legal advice.