Oliver v. Wilson
| Decision Date | 25 October 1899 |
| Citation | 80 N.W. 757,8 N.D. 590 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Application by Mrs. A. V. Oliver for a writ of mandamus against Charles E. Wilson, sheriff. From an order directing the writ to issue, and judgment to be entered against defendant, and from a judgment so entered, defendant appeals.
Reversed.
Order reversed, and judgment entered in appellant's favor.
Barnett & Reese, for appellant.
Respondent had an adequate and speedy remedy at law, hence was not entitled to mandamus. State v. County Judge, 5 Iowa 380; Inhabitants v. Mulliken, 7 Gray, 280; Peo v. Chase, 70 Ill.App. 42; Wright v. Kelley, 42 P. 565; Foster v. Angell, 33 A. 406; Bickley v Esendworth, 58 Ill. 364; State v. Beaver, 143 Ind. 488; State v. Smith, 38 A. 811; Wildwald v Dodson, 30 P. 580. The writ will not issue to control an official discretion. Wells v. Monroe, 38 A. 897. And where as in this case the facts relied upon by the relator are denied, the writ will not issue. In re McDonald, 39 N.Y.S. 367.
Morrill & Engerud, for respondent.
The other remedy which will prevent the issue of a writ, must be a remedy which like the writ of error or appeal will set aside and annul the void proceeding of which petitioner complains. State v. Rose, 4 N.D. 319, 58 N.W. 514. Mandamus is a proper remedy to enforce the exemption right. State v. Wilson, 48 N.W. 147.
The record in this proceeding discloses that the plaintiff made application to the District Court for a peremptory writ of mandamus, basing said application upon her own affidavit which is, in substance, as follows: That an action was then pending in the District Court for Cass county for the recovery of rent, wherein this plaintiff was defendant, and Northern Light Lodge No. 1, etc., a corporation, was plaintiff; that in said action a writ of attachment had issued, and been delivered to defendant herein for service as sheriff; that defendant had, by virtue of said writ, levied upon and seized a certain piano and piano stool belonging to this plaintiff; that within proper time, and in conformity to the statute regulating exemptions, this plaintiff caused to be served upon the defendant a verified schedule of all of her personal property, and demanded of the defendant that he set aside to this plaintiff her personal property exemptions to the amount of $ 1,500, and in said notice appointed one Brown as one of the appraisers of said property. The affidavit further set out that said civil action was not brought for labor or physician's services, or for property obtained under false pretenses, and that the plaintiff is a married woman, residing in the County of Cass and State of North Dakota, and has two minor children depending upon her for support, and living with her; and finally it is set out in the affidavit that the defendant has neglected and refused to recognize plaintiff's said claim for exemptions, and refused to cause said property to be appraised or set apart to plaintiff. The affiant asked the trial court to issue the peremptory writ, and thereby compel the defendant to proceed under the exemption law, and cause said property to be appraised, to the end that plaintiff might select her exemptions therefrom. Upon said affidavit an order to show cause was issued, and both the affidavit and order were served upon the defendant, requiring the defendant to show cause why the writ of mandamus should not issue as prayed for in said affidavit. At the hearing of the order to show cause the plaintiff offered in support of her application for the writ the said affidavit of this plaintiff and the order to show cause, and offered no other evidence, whereupon the defendant, by his attorneys, interposed objections to issuing the writ of mandamus, in substance, as follows: First, that the plaintiff has not set out in her affidavit sufficient grounds or reasons for granting the writ; second, that the plaintiff has a speedy and adequate remedy at law. These objections were overruled by the trial court, whereupon the defendant offered in evidence the complaint, and also the affidavit for attachment, in the civil action aforesaid. These papers, which were received in evidence without objection, need not be set out in detail. The complaint stated a cause of action for the recovery of rent. The affidavit for attachment was drawn under subdivision 3-5, § 5352, Rev. Codes. Upon this evidence the trial court made an order to the effect that the clerk of the District Court should forthwith issue the writ, substantially as prayed for in plaintiff's affidavit therefor; and said order further directed said clerk to enter a judgment for costs and disbursements in plaintiff's favor, to which order the defendant excepted. Subsequently, and on March 7, 1899, the defendant caused a notice of appeal to this Court to be served, and such notice stated that the appeal was taken both from the order and from the judgment.
In this Court the respondent has made a preliminary motion to dismiss the appeal upon the following grounds: First, that an appeal does not lie from an order granting a peremptory writ of mandamus; and, second, that the attempt to appeal from the judgment was premature; and, finally, upon the ground that no printed abstracts or briefs have ever been served, and that the typewritten briefs actually served do not contain assignments of error which refer to pages of the abstract.
It appears that the notice of appeal was served after the order directing the writ to issue had been served on counsel for the defendant, but such notice was served a few hours prior to the entry of the judgment by the clerk of the District Court. From this it follows that the appeal from the judgment was premature, and we therefore sustain the motion to dismiss, so far as it relates to the judgment. But, in our judgment, the appeal, so far as it relates to the order, was properly taken, under the provisions of subdivision 2, § 5626, Rev. Codes. The order was a final order affecting a substantial right, and was made in a special proceeding. It was final in the sense that no further order could be made in the special proceeding. Certainly none could be made prior to the entry of judgment. It is true (and this Court has so held) that a mere order directing the entry of judgment in an action is not appealable. See In re Weber, 4 N.D. 119, 59 N.W. 523; Field v. Elevator Co., 5 N.D. 400, 67 N.W. 147; In re Eaton, 7 N.D. 269, 74 N.W. 870. But the case at bar is readily distinguishable from the cases cited, and must be determined upon the express language of the statute regulating appeals from final orders in special proceedings. No similar language is found in the statute relating to final orders directing the entry of judgments in civil actions. We suggest here, however, in the interests of good practice, that the statute now contemplates the entry of judgment in a mandamus proceeding, and this accords with the practice in the State of New York. The judgment, in our opinion, should award the writ, as well as adjudicate upon the costs, in cases where the final order so directs. On appeal from such judgment, the order could be reviewed and the whole case disposed of. See Rev. Codes, § § 5578, 5585, and especially § 6120.
The next ground of the motion to dismiss the appeal is based upon the fact that the abstracts and briefs...
To continue reading
Request your trial