State v. District Court of Second Judicial Dist. In and For Silver Bow County

• Decision Date: 27 November 1922
• Docket Number: 5224.
• Citation: 210 P. 1062,65 Mont. 197
• Parties: STATE EX REL. DUGGAN, SHERIFF, v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY ET AL.
• Court: Montana Supreme Court

210 P. 1062

65 Mont. 197

STATE EX REL. DUGGAN, SHERIFF, v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY ET AL.

No. 5224.

Supreme Court of Montana

November 27, 1922

Original proceeding by the State, on the relation of Larry Duggan, as Sheriff of Silver Bow County, Mont., against the District Court of the Second Judicial District in and for the County of Silver Bow and another, to annul a writ of mandate and stay contempt proceedings. Peremptory writ of mandamus quashed, and citation in contempt proceedings annulled.

George Bourquin, Ed. Fitzpatrick, H. A. Tyvand, and M. Kerr Beadle all of Butte, for relator.

A. R Bertoglio, of Butte, for respondents.

HOLLOWAY J.

In an action numbered 26017, then pending in the district court of Silver Bow county, wherein Nick Berchen, Gar Thomas, and Frank Reardon were plaintiffs, and Al Mountain and Mrs. Al Mountain were defendants, a judgment was duly given and made on April 5, 1922, in favor of the plaintiffs and against the defendants for $586.73 and costs, taxed at $27.90. An execution was issued, but returned unsatisfied on May 3. On September 2, an alias execution was issued and placed in the hands of the sheriff of Silver Bow county, with directions to levy upon and sell all the right, title, and interest of the judgment debtors in and to lots 18 and 19, block 26, Daly addition to the city of Butte, which property then stood of record in the name of James Mountain. On October 17, the plaintiffs in cause 26017 presented to the district court an affidavit in which the foregoing facts are set forth, and, in addition thereto, it is alleged that the judgment debtors own an interest in the lots mentioned sufficient to satisfy the judgment, but, notwithstanding this fact, the sheriff failed and refused to levy upon or sell such interest. Upon this affidavit an alternative writ of mandamus was secured and served upon the sheriff, who appeared and moved to quash upon the ground that sufficient facts were not presented to warrant the relief sought, or any relief. The motion was overruled, and a peremptory writ was ordered issued on October 24, and on the same day the writ was issued and served. Two days later (October 26) an affidavit was presented to the court by one of the plaintiffs in cause 26017 in which it was recited that the peremptory writ of mandate had issued and had been served upon the sheriff, and in which were recited the contents of the writ. It was then stated that the sheriff had failed, neglected, and refused to comply with the mandate, and had not made return. Upon this showing the sheriff was cited into court to answer a charge of contempt. Application was then made to this court to exercise its power of supervisory control, and annul the writ of mandate and stay the contempt proceedings.

That the court erred in directing the writ of mandate to issue is made so apparent by this record that extended discussion seems unnecessary. A writ of mandamus may be obtained only upon affidavit. Section 9849, Rev. Codes 1921. In this jurisdiction, where the alternative writ refers to the affidavit, as in this instance, the two constitute the first pleading on the part of the applicant for the writ ( State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 P. 485), and the motion to quash interposed in the lower court challenged the sufficiency of the writ, and also the sufficiency of the affidavit upon which it is issued ( State Publishing Co. v. Hogan, 22 Mont. 384, 58 P 818). Mandamus is an extraordinary remedy, not to be had merely for the asking, but to be obtained only in those rare cases wherein there is not any plain, speedy, and adequate remedy in the ordinary course of law (section 9849); hence the rule so often announced by this court that the party applying for the writ must disclose the facts which establish his clear legal right to the relief sought. State ex rel. Beach v. District Court, 29 Mont. 265, 74 P. 498; State ex rel. Cutts v. Hart, 56 Mont. 571, 185 P. 769, 7 A. L. R. 1678.

Waiving aside all other objections to the sufficiency of the affidavit presented to the lower court, and the controlling question remains: Had the applicants a plain, speedy, and adequate remedy in the ordinary course of law? Assuming, for the purposes of the application only, that it was the duty of the sheriff to levy upon and sell property of record in the name of James Mountain to satisfy a judgment against Al Mountain and Mrs. Al Mountain upon the mere statement of counsel for the applicants that the judgment debtors had some interest in the property, and assuming that the refusal of the sheriff to proceed under the execution was wrongful still, if by reason of such wrongful refusal the judgment creditors suffer damages, the sheriff is liable on his official bond therefor. Section 482, Rev. Codes. Indeed, it is to cover just such cases that the officer is required to give a bond (Freeman on Executions [[3d Ed.] §§ 102, 252, 304), and, where, as in this instance, the judgment is for money only, the action for damages against the sheriff furnishes a plain, speedy, and adequate remedy. This is the general rule in the absence of a statute upon the subject. Habersham v. Sears, 11...