People v. Van Tassel

• Decision Date: 03 February 1896
• Docket Number: 643
• Citation: 43 P. 625,13 Utah 9
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, EX REL. WILLIAM J. PACE, APPELLANT, v. JAMES D. VAN TASSEL, RESPONDENT

43 P. 625

13 Utah 9

THE PEOPLE OF THE TERRITORY OF UTAH, EX REL. WILLIAM J. PACE, APPELLANT, v. JAMES D. VAN TASSEL, RESPONDENT

No. 643

Supreme Court of Utah

February 3, 1896

Appeal from the district court of the First judicial district Territory of Utah. Hon. W. H. King, Judge.

Application for mandamus by the people, on relation of William J. Pace against James Van Tassel. Demurrer to petition sustained and relator appeals. Reversed.

Reversed and remanded.

Wilson I. Snyder and Bismarck Snyder, for appellant.

If mandamus is not proper, there is no adequate remedy. State v. Brumley, 53 Mo.App. 126. See also the House case, 4 Utah 369.

Mandamus will sometimes control a discretion, and compel an inferior court to act in a particular way, and in just such case as this. Wood v. Strother, 76 Cal. 545; 9 Am. St. Rep 249; Burgtorf v. Bentley, 41 P. 163; King v. Justices of West Riding, 5 Barn. and Adol. 667.

Mandamus is especially proper where the subject to be controlled is merely preliminary. Cases above and cases cited in Wood v. Strother. See especially, Castello v. St. Louis Cir. Ct., 28 Mo. 274; State ex rel. Keane v. Murphy, 19 Nev. 89.

This is a case of concurrent remedy, and mandamus is proper. Pom. Eq. Jur. §§ 132, 133, 139, 173, 176, 216; Laws Rem. § 4032; Shortt Ex. Rem. pp. 342-344; Ib. 310, 311, 312; House case, supra; Cavenaugh v. Wright, 2 Nev. 166.

Mandamus is proper to compel the exercise of jurisdiction. Shortt Ex. Rem. p. 112; Ib. 133; Brown v. Mining Co. (Mich.), 63 N.W. 1000; Same v. Min. Co., Ib.; Same v. Houghton Circuit Judge, Ib.; Town of Haywards v. Pimentel, 40 P. 545; 2 Comp. Laws Utah 1888, p. 387, § 3730 et seq.

And there is nothing in the Hills case, 5 Utah 410, which really overrules the House case or militates against the views taken herein. The universal trend of opinion is that it is not sufficient that there is a remedy by appeal; that remedy must be adequate. House case, supra.

And the mere attempt on the part of the justice to say that the case was dismissed, will not strip the court of its general supervisory power. But it will authorize it to see that proper justice is done in the premises. Comp. Laws Utah 1888, p. 197, § 3026, sub. div. 9.

Wm. Buys and Warner & Knight, for respondent.

Mandamus will not be issued where there is any other specific, speedy, and adequate remedy. Crandall v. Amador County, 20 Cal. 72; People v. Olds, 3 Cal. 175.

The writ will not be issued where there is any other adequate or specific remedy, or where the party has a plain, speedy, and adequate remedy by an ordinary action at law, nor where the statute provides a plain, speedy, and adequate remedy. People v. Hubbard, 22 Cal. 34; People v. McLane, 62 Cal. 616. See Ducheneau v. Ireland, 5 Utah 108; People v. Hill, 5 Utah 410.

"Where the act to be done is judicial in its character, the writ will not direct in what manner the inferior court shall act." People v. Weston, 28 Cal. 640; Hoole v. Kinkead, 16 Nev. 218.

The justice has already decided the question, and mandamus will not be issued to compel the judge of a court to decide contrary to his own judgment, nor to compel a court to review its judgment. United States v. Lawrence, 3 Dall. 42; Ex parte Hoyt, 13 Pet. 661; Jacob v. Board of Supervision, 100 Cal. 121.

The office of a writ of mandamus is to compel the performance of an act which the law specially enjoins, and not to undo an act already done. Maxwell v. Burton, 2 Utah 595; High on Extra. Leg. Rem. § 152, p. 126; §§ 153-4, p. 127; §§ 155-6, p. 128; § 159, p. 130; § 182, p. 144; and § 272, p. 197; also Am. & Eng. Enc. of Law, vol. 14, pp. 108-9-10-11-12, et seq., and notes.

But it is unnecessary to go outside of our own courts, as this question has been decided fully by the supreme court. Ducheneau v. House, 4 Utah 363-483, and 11 P. 618; Hamilton v. Speirs, 2 Utah 225; Saunders v. Nursery Co., 6 Utah 431; Chamberlain v. Warburton, 1 Utah 267; and Maxwell v. Burton, 2 Utah 595.

As appellant was a non-resident of the county in which the said justice court was held, respondent was entitled to a dismissal of the action unless appellant made a deposit of money, or gave an undertaking for the payment of costs adjudged against him. See Comp. Laws 1888, section 3628.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

This is an appeal by the relator from a judgment of the district court denying his petition for a writ of mandate. He assigns as error the ruling of the court sustaining a demurrer to his petition on the ground that it did not state facts sufficient to constitute a cause of action. It appears from the petition that the plaintiff advanced $ 10, the sum demanded, and commenced suit against one Parley Neely in the court of which the respondent was justice, and of which the justice had jurisdiction; that a jury was summoned at the request of the defendant in the case; that before commencing the trial the justice, on motion of defendant, ordered the plaintiff to deposit the fees of the jury; that he declined to do so, and insisted upon a trial; that the justice refused to try the case, and dismissed it against plaintiff's protest. This statement presents for our consideration and decision the question, was the justice authorized to require the plaintiff to pay the fees of the jury summoned upon the demand of the defendant in the case? Comp. Laws Utah 1876, § 1091 provides that "before any party before a justice is entitled to a jury, the party demanding the jury shall deposit the fees to which they will be entitled, and the same shall be included in the judgment as part of the costs to be received if adjudged against the party who did not advance them." This section made it the duty of the magistrate, before issuing the venire, to require the party demanding the jury to advance their fees. It did not authorize him to require the opposite party to pay them before trial. But the defendant insists that the foregoing section was repealed by section 817 of the Code of Civil Procedure, approved March 13, 1884 (being section 3628 of the Compiled Laws of Utah 1888). viz.: "Justices of the peace may in all cases require a deposit of money, or an undertaking as security for costs, before issuing summons." The relator complied with this section by depositing the sum demanded by the justice, which was more than should have been demanded. The Code of Civil Procedure makes no provision for the advancement of jury fees by either party, when one is summoned. Section 14, same Code (section 2998, Comp. Laws 1888), declares that "no statute, law or rule, is continued in force because it is consistent with the provisions of this Code on the same subject; but in all cases provided for by this Code, all statutes, laws and rules, heretofore in force in this territory, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are repealed and abrogated." This section declares that the provisions of the Code do not continue in force provisions of a former law on the same subject, and that provisions of existing laws are repealed, so far as the Code makes provision on the same subject, unless expressly continued in force. While the section of the Code referred to authorizes the justice to require a deposit of money or an undertaking before issuing...