Steward v. Oklahoma ex rel. Woods

• Decision Date: 04 September 1896
• Citation: 4 Okla. 707,1896 OK 92,46 P. 487
• Court: Oklahoma Supreme Court
• Parties: S. A. STEWARD v. TERRITORY OF OKLAHOMA ex rel. J. H. WOODS, County Attorney.

1896 OK 92

46 P. 487

4 Okla. 707

S. A. STEWARD v. TERRITORY OF OKLAHOMA ex rel. J. H. WOODS, County Attorney.

Supreme Court of Oklahoma

Decided: September 4, 1896

Appeal from the District Court of Oklahoma County.

This is a proceeding in mandamus commenced in the district court of Oklahoma county by the Territory of Oklahoma ex rel. J. H. Woods, county attorney, to compel S. A. Steward to pay to the county certain moneys collected by S. A. Steward as probate judge for issuing and recording marriage licenses. Defendant below demurred to the petition, which demurrer was by the court overruled, and judgment awarded as prayed for in the writ. The opinion states the facts.

Syllabus

¶0 MANDAMUS--Remedy at Law. The writ of mandamus will not be awarded when the relator has a plain and adequate remedy at law. The writ of mandamus is one of the extraordinary remedies resorted to in cases where the usual modes of procedure cannot furnish the desired relief. ( Collet v. Allison, 1 Okla. 42, followed.)

S. A. Steward, J. Milton, and Asp, Shartel & Cottingham, for appellant.

J. H. Woods and J. L. Brown, for appellees.

DALE, C. J.:

¶1 April 20, 1894, J.H. Woods, county attorney of Oklahoma county, on the relation of the Territory of Oklahoma, filed a petition for mandamus in the district court of Oklahoma county against S. A. Steward. In substance the petition states that Steward was on the 23d day of February, 1891, the duly elected and qualified probate judge of Oklahoma county and Territory of Oklahoma; that during his continuance in office he issued and recorded marriage licenses for which services under the law he collected the sum of $ 1,280; that said Steward admits the issuance and recording of such licenses and the collection by him of the moneys, and that he has not paid any part thereof into the county treasury of the county; and that he claims the right to retain said money under the law, for his services as such probate judge. The defendant below demurred to the petition upon the ground, first, that the petition failed to state a cause of action, and second, for the reason that the law did not require him to turn over to the county treasury the money referred to in the petition. The matter was heard by the court, and from an examination of the record it does not appear that the first ground alleged in the demurrer was seriously urged in the court below, but that the case was decided upon the question raised as to whether the law required tha probate judge to pay the moneys collected from such sources into the county treasury, or whether he might keep the same to compensate him for his services performed in the issuing and recording of the marriage licenses. In this court, by brief, counsel urge that mandamus will not lie in a case of this character; that the plaintiff below had an adequate remedy at law, and that the demurrer should have been sustained upon the ground that the petition failed to state a cause of action.

¶2 Under the law of this Territory as found in § 717, art. 33, ch. 66, procedure civil, it is found that this writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. This same statute, in effect was passed upon by the supreme court of this Territory in Collett v. Allison, 1 Okla. 42, 25 P. 516, and in the opinion filed in that case, Clark, J. speaking for the court, said:

"The statute further provides that this writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. This is the general rule recognized by all the courts. Not only does the petition fail to negative the idea that the plaintiff has any other mode of redress, but it is apparent that she has an adequate legal remedy by an action at law against the defendant."

¶3 The statute which we now have is adopted from Kansas, and is the same, in effect, which has always been in force in that state. In State ex rel, McCrillus, 4 Kan. 250, it was held that:

"The law is that this writ shall not be issued when there is a plain and adequate remedy in the ordinary course of law. The facts show that the money is now in the hands of the treasurer; that it is due the relator, and he refused to pay it over. Is there not a plain and adequate remedy in the ordinary course of the law? An action against the treasurer on his bond is as plain a remedy as a suit upon a note against a delinquent debtor. And if, as was suggested by counsel on both sides, the question of the validity of the bond is to be raised, such an action is a more appropriate one to try that question than is afforded by this writ."

¶4 Again, in State ex rel. Stockwell, 7 Kan. 98, it is held:

"The writ of mandamus is an extraordinary remedy to be resorted to whenever there is no other appropriate remedy. It will not be issued in any case where the

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