Riesland v. Bailey

• Decision Date: 03 April 1934
• Citation: 31 P.2d 183,146 Or. 574
• Parties: RIESLAND v. BAILEY, County Clerk.
• Court: Oregon Supreme Court

31 P.2d 183

146 Or. 574

RIESLAND v. BAILEY, County Clerk.

Supreme Court of Oregon

April 3, 1934

Department No. 2.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Proceeding in mandamus by Ben Riesland against A. A. Bailey, County Clerk in and for the County of Multnomah. From a judgment sustaining a demurrer to an alternative writ and dismissing the proceeding, plaintiff appeals.

Reversed and remanded.

This is a proceeding in mandamus. Respondent demurred to the alternative writ; the court sustained the demurrer and dismissed the proceeding. Plaintiff appeals.

It appears from the alternative writ of mandamus, in substance as follows: The defendant is the county clerk for Multnomah county, Or.; plaintiff was executor of the last will of Robert Berger, deceased; Roy E. Berger is administrator de bonis non with the will annexed of the estate of said decedent. On July 27, 1932, a final decree was entered in the probate department of the circuit court for Multnomah county in the matter of the estate of said decedent, Robert Berger whereby, among other things, plaintiff, the petitioner, was ordered and required to pay to said administrator de bonis non the sum of $4,583.70, as the balance of the account of said petitioner; that within the time allowed by law the petitioner served and filed notice of appeal from that judgment to the Supreme Court and within ten days thereafter served and filed an undertaking on said appeal, signed by petitioner, as principal, and executed by Jennie A. Marlatt Lois M. Cook, and Hazel Neen Loomis, as sureties; that said undertaking was conditioned both as a cost bond and a supersedeas bond, and provided that said petitioner, as appellant, would pay all damages, costs, and disbursements which might be awarded against him on said appeal, and that if said decree or any part thereof should be affirmed, the petitioner would satisfy the same so far as affirmed; the thereupon said administrator, as respondent, excepted to the sufficiency of said sureties, and pursuant to such exception said petitioner gave notice of the justification of said sureties before the defendant county clerk, and on October 15, 1932, two of said sureties, namely, Jennie A. Marlatt and Lois M. Cook, appeared before the defendant county clerk and justified as such sureties by describing under oath the character and value of their property, real and personal owned by them within said state; that the two sureties last named showed under oath without dispute that each of them was a resident and freeholder within said state and that together they were worth an amount in excess of $50,000 in real and personal property within said state, over and above all their debts and liabilities and exclusive of property exempt from execution; that they also showed that neither of them was a counselor or attorney at law, sheriff or clerk of any court, or other officer of any court; that it was then and there the county clerk's duty to overrule the exceptions as to said sureties and to approve said undertaking, and said petitioner then and there demanded of defendant that he perform said duty, but disregarding defendant's duty in the premises he capriciously, arbitrarily, unjustly, unlawfully, and in abuse of his discretion in the premises, violated his duty therein, sustained the objection of the said administrator to said sureties, held that they were insufficient as such and rejected and disallowed said undertaking in toto; that said petitioner has no other remedy at law or in equity than the issuance of a writ of mandamus directed against the defendant county clerk, and it is indispensable to the enforcement of said petitioner's right that such writ be issued; whereupon the defendant was required to appear and show cause before the circuit court why he should not overrule the exceptions and objections to said sureties and approve said undertaking.

Lowell Mundorff, of Portland (B. G. Skulason, of Portland, on the brief), for appellant.

Wilber Henderson, of Portland, for respondent.

The appellant assigns error in sustaining the demurrer to the alternative writ. The question submitted is whether mandamus will lie to inquire into an abuse of discretion by such an official as the county clerk. The general rule, which is well recognized, is that where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular action he will take to his determination. 18 R. C. L. 124, § 38. There are important exceptions to the general rule. If there is an arbitrary abuse of discretion, the courts recognize that this is an exception to the general rule and mandamus may issue if there is no other adequate remedy, though the result is that the court is called upon to review the exercise of a discretionary power. It is not accurate to say that the writ will not issue to control discretion, for it is well settled that it may issue to correct an abuse of discretion, if the case is otherwise proper. The public officer or inferior tribunal may be guilty of so gross an abuse of discretion, or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law. In such a case mandamus would afford a remedy where there was no other adequate remedy provided by law. 18 R. C. L. 126, § 39. In 38 C.J. 598, after stating the general rule, it is stated in section 74, as follows:

"While the contrary view has been upheld, the great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused. The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious, *** or there has been a refusal to consider pertinent evidence, hear the parties when so required, or to entertain any proper question concerning the exercise of the discretion. *** If by reason of...