Appellate Law

Mandamus is not a substitute for an appeal

In Ex parte A.S., [Ms. 1071104] (Ala. Aug. 15, 2008), the Alabama Supreme Court dismissed a petition for writ of mandamus because the appropriate remedy was by way of appeal.

The juvenile court granted custody of a child to the  great grandmother.  The mother sought a petition for writ of mandamus from the Circuit Court challenging that ruling.  The Circuit Court denied the mandamus.  The mother then filed a petition for writ of mandamus with the Court of Civil Appeals seeking review of the Circuit Court's order.   The Court of Civil Appeals dismissed the petition as untimely.

The Alabama Supreme Court held that, regardless of whether the petition was timely, the mandamus petition was due to be dismissed.  The proper vehicle for the review of a pendente lite order is an appeal, not a mandamus.  Slip. Op. p. 8.  Because she had an adequate remedy by way of appeal, and because a mandamus cannot be used as a substitute for an appeal, the mandamus petition was due to be denied.

Full post as published by Alabama Appellate Watch on August 29, 2008 (boomark / email).