State ex rel. Missoula Mercantile Co. v. Whelan

Decision Date06 May 1898
Citation53 P. 2,6 Idaho 78
PartiesSTATE EX REL. MISSOULA MERCANTILE COMPANY v. WHELAN, PROBATE JUDGE
CourtIdaho Supreme Court

MANDAMUS-ORDER TO SELL REAL ESTATE-APPEALABLE ORDER.-Under the provisions of subdivision 5, section 4831, of the Revised Statutes, an order denying the issuance of an order to show cause why the real estate of a decedent should not be sold to pay claims against his estate is an appealable order. A plain, speedy and adequate remedy by appeal having been thus provided, a writ of mandate will not issue to compel the issuance of such order.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment reversed, and costs of this appeal awarded to appellant.

H. F Samuels, for Appellant.

The court erred in granting the peremptory writ of mandate. (Merrill on Mandamus, sec. 67, p. 77.) It is contrary to the policy of the law that mandamus should issue, where its sole purpose and effect is to release the party seeking it from the consequence of his own mistake and omission. (14 Am. &amp Eng. Ency. of Law, 105; Klokke v. Stanley, 109 Ill. 192; 3 Estee's Pleading and Practice, Boone's ed., sec. 5416, and note; State v. Railroad Co., 42 La. Ann. 138, 7 So. 226; State v. Young, 38 La. Ann. 923; Blair v. Mayre, 80 Va. 485.) Mandamus will not lie to compel a public officer to do an act not clearly commanded by law. (14 Am. & Eng. Ency. of Law, 102, and note.) The writ of mandate will not lie if the right of the party applying therefor is not clear. (3 Estee's Pleading and Practice, Boone's ed., sec. 5422; People v. Spruance, 8 Colo. 307, 6 P. 831.) The order of the probate court denying the sale of the said real estate is an appealable order (Idaho Rev. Stats., sec. 4381, subd. 5), and if respondent was dissatisfied with the ruling of the court they should have appealed, for writ of mandamus should not be issued in any case in which there is a plain, speedy and adequate remedy in the ordinary course of law (Idaho Rev. Stats., sec. 4978) and an appeal is a plain, speedy, and adequate remedy. (Clark v. Minnis, 50 Cal. 510.) Mandamus cannot direct what judgment shall be rendered, and when a decision has been reached in a matter involving discretion a writ of mandamus will not lie to review or correct it, no matter how erroneous it may be. (Pyke v. Steunenberg, 5 Idaho 614, 51 P. 615; Merrill on Mandamus, sec. 32.)

W. W. Woods, for Respondent.

The writ of mandamus is used to quicken the negligence and obviate their denial of justice by inferior courts. When a duty is imposed by law upon a court a mandamus from a higher court is the proper means to compel the discharge of such duty. When such duty is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance such duty is ministerial, and a writ of mandamus to compel the performance of such duty will specify the exact mode of performance. (Merrill on Mandamus, sec. 186; High on Extraordinary Legal Remedies, 230.) When a court for any cause improperly refuses to proceed in a cause, mandamus lies to compel action. (Merrill on Mandamus, sec. 204; High on Extraordinary Legal Remedies, secs. 152, 171.)

SULLIVAN, C. J. Huston, and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an appeal from an order granting a writ of mandate to compel the defendant, the probate judge of Shoshone county (who is appellant), to issue an alias order to show cause why the real estate of Edward Paquin's estate should not be sold. It appears from the record that on December 17 1897, the plaintiff, the Missoula Mercantile Company, filed its petition for the sale of said real estate, and at the same time presented to the appellant, for his signature, an order to show cause in said matter, in which order the date of such hearing was fixed for the eighteenth day of January, 1898. Thereupon the appellant requested the respondent to change said date to the twenty-fourth day of January, 1898. Respondent objected to any change being made, and thereupon the appellant signed said order. On the eighteenth day of January, 1898, the public administrator, who was and is administrator of said estate, filed objections to said petition. Counsel for respondent appeared, and argued the question thus submitted on its merits. It appears that the administrator contended that due and sufficient notice had not been given of such hearing, and that the proceedings in said matter were not regular. It was shown that said order to show cause why said real estate...

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