Harkins v. Supervisors Scott County

• Decision Date: 01 January 1858
• Citation: 2 Minn. 342
• Parties: CHARLES HARKINS vs. BOARD OF SUPERVISORS OF SCOTT COUNTY.
• Court: Minnesota Supreme Court

Page 342

2 Minn. 342

CHARLES HARKINS vs. BOARD OF SUPERVISORS OF SCOTT COUNTY.

Supreme Court of Minnesota.

Application for peremptory writ of mandamus.

Henry Hinds and M. E. Ames, for petitioners.

L. M. & J. H. Brown, for respondent.

FLANDRAU, J.

Application by the plaintiff, as register of deeds elect of the county of Scott, for a peremptory writ of mandamus, to compel the board of supervisors to take action upon his official bond, and approve or disapprove of its sufficiency.

The writ of peremptory mandamus is one by which an act is commanded to be done absolutely, and a disobedience may be punished as for contempt. The district court have concurrent jurisdiction with the supreme court in granting this writ, Rev. Stat. 425, § 17, as amended on page fifteen of amendments, and from their decision an appeal may be taken to this court. Before the adoption of the constitution, the justices of the supreme court could issue alternative writs of mandamus, and if an issue of fact was joined thereon, they could summon a jury and try it, and the trial was held in the same manner as of a civil action in the district court. Rev. Stat. 424, §§ 12, 13 and 14.

Since the constitution, there can be no trial by jury in the supreme court. Const. art. 6, § 2. As the defendant in a proceeding by alternative writ of mandamus, is entitled to have a trial by jury if he demands it, it follows that the supreme court has lost jurisdiction of the alternative writ, as a court cannot take jurisdiction of an action in which it has not power to proceed to final judgment. Under this view of the law, this court has adopted the rule that in all cases of an application for a peremptory writ of mandamus, either to the court en banc, or to either of the justices at chambers, notice of the application must be served on the defendant a reasonable time before the hearing, to enable him to resist the application. This rule is based upon the fact that there can be no appeal from a peremptory writ granted by a justice of the supreme court, and the power is found in section 8, p. 424, of the Rev. Stat., which provides that "the motion for the writ, the allowance, and the service thereof, and the enforcement of obedience thereto, must be such as the court shall direct." If a district judge make a mistake in the allowance of such a writ, the error can be corrected on appeal, but a similar mistake by a justice of this court would leave a party without redress. The rule will be salutary in its effect as a protection to the...