Opinion

Ex Parte Lockhart

  • 224 Ala. 517
  • 140 So. 762
  • 1932 Ala. LEXIS 99
Court
Supreme Court of Alabama
Filed
Jan 14, 1932
Status
Published
On the bench
Gardner, Anderson, Bouldin, Doster, Boüldin, Foster
Cited by
2 cases
Authority
More cited than 12.2%

The opinion

On Rehearing.

We had not, upon original consideration of this cause, overlooked the authorities relied upon by petitioner (Mann Lumber Co. v. Bailey Iron Works, 156 Ala. 598 , 47 So. 325 ; Sloss-Sheffield Co. v. Webb, 184 Ala. 452 , 63 So. 518 ; Troy Fertilizer Co. v. State, 134 Ala. 333 , 32 So. 618 ), which are to the general effect that, unless the pleading is prellx, irrelevant, or frivolous, a motion to strike is not the appropriate remedy, but resort should be had to a demurrer. But we were of the opinion these authorities were without application in the instant case, where a statutory right of removal was involved, and the petition lacked jurisdictional averment to that end.

Petitioner complains of a lack of opportunity to amend. But the only motion presented by petitioner made no reference to any amendment concerning the matter of jurisdictional averment noted in the foregoing opin *519 ion. Had an offer to so amend been tins duly presented, it may be tbe court would have ■been justified in treating the matter as a renewed application in due form for an order of removal at that time. But such contingency need not be here considered, as no such amendment was offered. And it should not be overlooked that petitioner seeks an extraordinary writ, for the granting of which he must show a clear, specific, legal right (Brody v. Armstrong, 205 Ala. 263 , 81 So. 708 ), and, clearly, the court, as the record thus stood, was justified in a retransfer of the cause to its original jurisdiction.

The cases of Self v. Comer, Brown v. French, and Briggs v. Prowell, noted in the original opinion, were not cited as here directly in point, but only as indicating the view of the court, as expressed in those authorities, that the petition for removal lacked this jurisdictional averment, which was considered as a condition precedent to removal.

We are not persuaded that our original opinion is erroneous, and the application will accordingly be denied.

Application for rehearing denied.

ANDERSON, C. J., and BOÜLDIN and FOSTER, JJ., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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