dissent"> FOSTER, Justice

(dissenting).

In Ex parte Wright, 226 Ala. 206, 146 So. 533, this court ordered the issuance of a writ of mandamus to Judge Walker, commanding him to strike from his order the requirement that prepayment be made to the court reporter of the fee for transcribing the testimony as a condition to his duty to do so.

In Ex parte Wright, 151 So. 865, 1 this court, upon another petition, found that the judge had complied with the order as previously directed by this court; that the reporter had refused to obey it, and was cited for contempt; that on a hearing of the contempt the judge quashed that proceeding and discharged the reporter. This court held that he should not have done so, hut that a writ should be issued requiring him to set aside, vacate, and annul his order quashing the proceeding and discharging the reporter, and to enter a decree compelling the ¡reporter to transcribe the testimony and file it, and enforce a compliance with the order. The judge thereupon did set aside- his order-quashing and discharging, and set the petition for contempt down for hearing. There was then in full force his previous order that the reporter transcribe and file the testimony without a prepayment of the fee, and no further order to that effect was necessary.

On hearing the petition the reporter filed what this court now thinks is a frivolous plea| and the petitioner moved to strike it. That motion was heard, argued and submitted, and taken under consideration. This petition does not seek to have a speedy decision on that question, nor a speedy hearing of the .petition for contempt. The judge in his answer asserts a determination to proceed to a hearing. This petition seeks to require the judge to enforce a compliance with his order to the reporter.

There is but one step he can take to enforce such a compliance; that is, a commitment to jail until it is done. If an order by us now is anything more than a gesture, it is to require the judge to commit the reporter until he complies with the duty imposed. That means that we shall pass upon the contempt proceeding before the circuit judge shall do so, and that in passing on it we shall give the reporter no chance to be heard.

Except as otherwise provided, we can only review some order of the circuit judge in this respect. We can require him to act, but cannot direct him what he shall do upon the hearing. If the judge is temporizing and delaying, we can compel prompt action. That is not what is here sought.

The circuit judge has no legal right to commit for a civil contempt that which is not in respect to the orderly decorum of its proceedings done in his presence, without a citation and after hearing. 13 Corpus Juris, 63, 64, et seq.

A rule nisi to show cause was issued, but he is given no chance to show cause. The notes may be lost or stolen, or he may be sick or afflicted. Because he has filed a frivolous plea is not sufficient to condemn him without further hearing.

My view is that the mandamus now about to be issued is a meaningless gesture which *45 cannot tie complied with in literal form. After its issuance tie can do no more than he is proceeding to do — hear and determine the matter on its merits.

GARDNER, J., concurs in the foregoing dissent.

228 Ala. 96.

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