State v. Black
| Decision Date | 17 June 1891 |
| Citation | 13 S.E. 361,34 S.C. 194 |
| Parties | State ex rel. Canaday v. Black, Sheriff. |
| Court | South Carolina Supreme Court |
Petition for mandamus.
Original petition for mandamus by State ex rel. J. I Canaday. Gen. St. S. C.§§ 2116, 2117, relative to the functions of cricuit judges, provide that a circuit judge shall have jurisdiction to discharge all the duties of his office within the circuit where he resides, except the holding of circuit courts therein, when some other circuit judge shall be engaged in holding said courts.
This was a petition addressed to this court in the exercise of its original jurisdiction, for the purpose of obtaining a writ of mandamus directing the respondent "to forthwith put your petitioner into possession of the lands hereinbefore mentioned and described." In the petition, which was verified, it is alleged that the petitioner is the owner of and entitled to the immediate possession of a certain tract of land situate in the county of Colleton, particularly described therein. (2) That on the 11th of October, 1890, he made an affidavit (a copy of which is filed with the petition as an exhibit) before a trial justice of said county, that one Phillip Loyd was in possession of the said premises as a tenant, and, though his lease had expired, had refused to surrender possession to the petitioner. (3) That the said trial justice, together with another trial justice of said county, took the necessary proceedings (copies of which accompany the petition as exhibits) under section 1817 of the General Statutes to eject the said Philip Loyd and one James Sanders, who, it was alleged, was also in possession under the said Philip Loyd and by his consent. (4) That as the result of such proceedings, and in conformity with the verdict of the jury, the said trial justices issued their warrant addressed to the said Robert Black, as sheriff of Colleton county, commanding him "forthwith to deliver to the said J. I. Canaday full possession of the premises as hereinafter described, and to levy expenses incurred of the goods and chattels of Mrs. L. C. Campbell." A copy of this warrant, containing a description of the premises, is likewise filed as an exhibit with the petition. (5) That the respondent, Robert Black, has refused to execute the warrant of the said trial justices requiring him to deliver possession of the said premises to the petitioner, basing his refusal upon an order, set out in the petition, granted by his honor, Judge Izlar, judge of the first judicial circuit at his chambers in Mt. Pleasant, in Berkeley county, a county which is not embraced within the limits of the second circuit, wherein the land in question is situate, and wherein the cause of action arose. (6) That this order was based upon an ex parte unverified petition, presented by the said James Sanders, (a copy of which is filed as an exhibit,) praying that a writ of certiorari might be issued directed to the said trial justices, requiring them to certify their proceedings to the next term of the circuit court for Colleton county, and that in the mean time further proceedings in said cause be stayed, and that upon this petition Judge Izlar, without notice to the relator, indorsed the following order: "On filing and reading the foregoing petition, and on application of W. E. Klein, attorney for petitioner, I allow the writ of certiorari herein prayed for, and order that all further proceedings in said action be stayed." (7) Relator submits that, inasmuch as his honor, Judge Aldrich, judge of the second circuit, was then in said circuit, holding court therein, his honor, Judge Izlar, had no jurisdiction to grant the order allowing the writ of certiorari, and staying the proceedings. It will be noted that, in stating the substance of this petition, we have not followed the numbering of the paragraphs as found in the petition, and this statement is made simply to avoid confusion or misapprehension.
Upon hearing this petition, the usual rule to show cause was issued, to which the respondent has made return, in which, while not controverting any of the facts stated in the petition, he states additional facts which are not traversed by the relator, to-wit, that on the 1st of November, 1890, the order of Judge Izlar "came up for a hearing before his honor, Judge Aldrich, at Walterboro, when the return of the said trial justices was read, and objection to the authority of Judge Izlar was then made as to his right to grant the same; that such hearing was postponed, and, owing to the indisposition of Judge Aldrich, was not heard during the October term of court for Colleton county, and the cause was continued;" and files as exhibits copies of said return, etc. Respondent submits "that it is not his plain ministerial duty to obey an order of ejectment unless the same be regular in form, and directed solely against the parties to the proceeding, and unless the same issue from a court of record or other competent authority;" and that it is not his plain ministerial duty to disobey the order of a circuit judge, regular on its face.
The first ground relied upon by the respondent clearly cannot be sustained. It is conceded that the proceeding which culminated in the warrant was instituted under section 1817 of the General Statutes, and that section expressly declares that "if, upon hearing the case, the jury shall be satisfied that the complainant is entitled to the premises in question, they shall so find; whereof the justices shall make a record, and shall thereupon issue their warrant, directed to the sheriff of the county wherein the lands are situated, commanding him forthwith to deliver to such lessee, his heirs or assigns, full possession of the premises, and to levy all expenses incurred of the goods and chattels of the lessee, or the person in possession as aforesaid." Here was a plain ministerial duty imposed upon the sheriff, which he was bound to perform. He had no authority to inquire into the regularity of the proceedings before the trial justices, or whether they had committed any errors in performing the duties required of them by the statute. Whether all the proper parties had been made was not for him to inquire about. His duty was simply to execute the warrant as it came to him. See Bragg v. Thompson, 19 S.C. 576; Goodgoin v Gilreath, 32 S.C. 391, 11 S.E. Rep. 207, Rogers v. Marlboro Co., 32 S.C. 561, 11 S.E. Rep. 383. If the trial justices committed any errors of law, either in the institution or conduct of the proceedings, the law affords a remedy for the correction of such errors; but it is not to be found in the refusal of the sheriff to execute the warrant. If, for example, the trial justices improperly incorporated in the warrant a mandate to levy the expenses out of the property of Mrs. Campbell, (as to which, however, we adjudge nothing, as she is not a party to this case,) she will have her remedy, if the sheriff undertakes to make such levy. But that matter is not before us, as the only question presented for our decision is whether the relator is entitled to a writ of mandamus requiring the respondent forthwith to deliver possession of the premises to the petitioner.
The only real question in the case is whether the second ground upon which the respondent bases his refusal, to-wit, the order of Judge Izlar, can be sustained. There can be no doubt that, if Judge Izlar had jurisdiction to grant such order this would afford ample excuse to the respondent for refusing to obey the mandate of the trial justices. But if, on the other hand, he had no such jurisdiction, then it is obvious that the order is a nullity, and affords no excuse whatever to respondent. If the order was a nullity, then it is the same, legally, as if no such order had ever been signed; in which case respondent would stand without any...
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