In this case, defendant in error's motion to dismiss the writ of error sued out from the amended final judgment entered in a mandamus proceeding must be denied because it appears that notwithstanding two previous writs of error sued out and dismissed as to the original purported final judgment in the cause, the only final judgment that has ever been entered in the proceeding is that which was entered by the Court on May 15, 1933, to which the present writ of error was sued out on the 8th day of June, 1933, returnable to the court on July 11, 1933. As the last mentioned writ of error was obviously sued out within the six *Page 438 months limitation of time allowed for taking writs of error in law cases, the grounds of defendant in error's motion was not taken in time, must necessarily fail.

What purports to be a final judgment in the cause entered on November 22, 1932, is not in legal effect a final judgment at all, whether heretofore so regarded by the parties to it, or not. The only legal final judgment that can be entered for the relator in a mandamus case is a judgment of the court ordering a peremptory writ of mandamus to be issued in exact accordance with the alternative writ or an order quashing the alternative writ. The "order" of November 22, 1932, did not require or provide for the issuance of a peremptory writ, therefore it is not a final judgment, and did not become such until it was amended by the order May 15, 1933, which thereupon became the final judgment in the cause.

Motion to dismiss writ of error denied.

WHITFIELD, TERRELL and BUFORD, J. J., concur.

BROWN, J., concurs in conclusion.