State ex rel. Spriggs v. Shipton, 2671

• Decision Date: 02 August 1955
• Docket Number: No. 2671,2671
• Citation: 286 P.2d 601,74 Wyo. 239
• Parties: STATE ex rel. John J. SPRIGGS, Plaintiff, Relator, and Appellant, v. J. F. SHIPTON, as County Treasurer of the County of Fremont, State of Wyoming, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 601

286 P.2d 601

74 Wyo. 239

STATE ex rel. John J. SPRIGGS, Plaintiff, Relator, and Appellant, v. J. F. SHIPTON, as County Treasurer of the County of Fremont, State of Wyoming, Defendant and Respondent.

No. 2671.

Supreme Court of Wyoming.

Aug. 2, 1955.

John J. Spriggs, Sr., John J. Spriggs, Jr., Lander, for appellant.

Smith and Nicholas, W. J. Nicholas, Lander, for respondent.

Before RINER, C. J., BLUME, J., and PARKER, District Judge.

PER CURIAM.

This case, number 2671 in this court (number 5200 in the trial court), consolidated for trial with case number 2670 in this court (number 6485 below), is an appeal from a judgment denying plaintiff's request for mandamus to force the issuance of a tax deed by the county treasurer. 286 P.2d 598. The original suit was brought against Charles M. Hall, county treasurer of Fremont County, and later, when Hall's term had expired, J. F. Shipton was substituted as defendant.

The facts, as they appear to this court, are that John J. Spriggs on December 7, 1932, paid for and received certificates of purchase covering certain mining claims located in Fremont County, which claims had previously been sold to Fremont County for delinquent 1928 and 1929 taxes. On July 17, 1934, prior to the time that the instant suit was filed, one Marshall Graham, receiver of Federal Gold Mining Company et al., had brought an injunction suit in the District Court of Fremont County, Wyoming, against Charles M. Hall, county treasurer of Fremont County, and had secured an injunction against Hall, reading in part as follows:

'Now, Therefore, you, the said Charles M. Hall, as County Treasurer of Fremont County, Wyoming, defendant, herein, are hereby restrained and enjoined from issuing a tax deed to the above described property under the Certificate of Purchase heretofore issued by the County of Fremont at the time of the sale of said property for taxes, being Certificate of Purchase No. A 4261, to Peter Sherlock or any other person or persons, and you are further restrained and enjoined from permitting the redemption of said property from said Certificate of Purchase, by any person or persons, whether as assignees of creditors of claims against the former owner or owners of said property or otherwise.'

Plaintiff herein was not made a party to the injunction suit and he did not intervene therein.

The trial court in the instant case on ex parte hearing issued an alternative writ of mandamus, and on final hearing vacated the alternate writ, giving judgment for the defendant, from which judgment plaintiff has appealed.

Although counsel stressed other matters, which the trial court may or may not have considered, the question which occurs to us as paramount is: Should a court consider and determine whether or not an official should be ordered to do something contrary to another order of the same court or a court of the same status?

Our statutes relating to injunction and those relating to mandamus are both similar to those of the State of Ohio, a state much quoted in the law relating to the problem before us. For example, in 34 Am.Jur., Mandamus, § 77, it is stated:

'Since the appropriate function of mandamus is to compel the performance of duties imposed upon the respondent by law, and not to coerce acts which the law prohibits, it would seem that the relief ought not to be granted to enforce the doing of an act which has been expressly forbidden by injunction, at least, where the applicant for mandamus was a party to the injunction suit. In denying mandamus in such cases, some courts take the view that the tribunal to which the application for the writ is made will not place the respondent between two fires by subjecting him to contradictory orders and thereby render him liable to...