In Shamburger v. Lambert, [Ms. 2080218] (Ala. Civ. App. May 29, 2009), the Court of Civil Appeals reversed the writ of mandamus issued by the circuit court on a review of a district court judgment. The district court judgment had to be review by appeal and not mandamus, therefore, the mandamus was improper.
The district court entered judgment for the plaintiff on an unlawful-detainer action. Pursuant to the unlawful-detainer statute, Ala Code sec. 6-6-350, the defendant then had seven days to file an appeal to the circuit court. The defendant, however, waited 44 days to appeal. After the plaintiff filed a motion to dismiss the appeal as untimely, the defendant then filed a petition for writ of mandamus with the circuit court, alleging that the district court did not have subject matter jurisdiction because the plaintiff lacked standing. The circuit granted the mandamus and vacated the judgment, and then denied plaintiff’s motion to reconsider.
The plaintiff then filed a petition for writ of mandamus with the Court of Civil Appeals. The Court of Civil Appeals elected to treat the mandamus petition as an appeal, citing Weaver v. Weaver, 4 So. 3d 1171 (Ala. Civ. App. 2008).
The Court of Civil Appeals held that the defendant’s appeal to the circuit court should have been dismissed as untimely. The late filing of the notice of appeal was jurisdictional, and the the circuit court was prohibited from hearing the appeal.
It also was improper for the circuit court to grant a mandamus petition when it should have dismissed the earlier appeal as untimely. The mandamus was inappropriate because the defendant had adequate remedies on appeal. The defendant could have raised lack of standing in a timely appeal, or, the defendant could have filed a Rule 60(b)(4) motion for relief from a judgment which was void due to a jurisdictional defect. The defendant, however, took neither action. Therefore, the mandamus issued by the circuit court was improper due to the remedies available on appeal.