Strauss v. Costello

• Citation: 29 N.D. 215,150 N.W. 874
• Parties: STRAUSS v. COSTELLO, Judge.
• Decision Date: 04 January 1915
• Court: United States State Supreme Court of North Dakota

29 N.D. 215

150 N.W. 874

STRAUSS

v.COSTELLO, Judge.

Supreme Court of North Dakota.

Jan. 4, 1915.

Syllabus by the Court.

Under the provisions of sections 8599 and 8600, Comp. Laws of 1913, an order of a county court, denying an application for the entry of a decree approving a final account and ordering a final distribution of an estate, on the sole ground that the inheritance tax, provided by chapter 185 of the Laws of 1913, has not been paid, is an appealable order. Held further that the provision for an appeal from such order furnishes a remedy in the ordinary course of law.

A writ of mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy, where no adequate legal remedy is provided.

The prerequisites necessary to the issuance of a writ of mandamus are: First, that it appears that the relator has a clear legal right to the performance of the particular duty; second, that the law affords no other plain, speedy, and adequate remedy.

When a trial court takes cognizance of an application in a proceeding therein pending, and denies it on the ground that facts are not shown entitling the petitioner to relief demanded, the court has exercised its judgment, and mandamus will not lie to direct the judge what judgment to enter, as to do so would be directing his action instead of only directing him to act.

The constitutionality of the provision of chapter 185, Laws of 1913, imposing an inheritance tax of 5 per cent. upon property descending to nephews and nieces, claimed to be an arbitrary discrimination in favor of cousins whose inheritance is taxed only 3 per cent., is not decided. See last paragraph in opinion for intimation on the subject.

Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.

Mandamus by Fred Bismarck Strauss, executor of the last will and testament of Fred Strauss, deceased, against W. P. Costello, Judge of the County Court in and for Burleigh County, N. D. From an adverse order, petitioner appeals. Affirmed.

F. E. McCurdy, of Bismarck, N. D., for appellant. George E. Wallace, of Bismarck, and L. E. Birdzell, of Grand Forks, for the North Dakota Tax Commission. H. R. Berndt, State's Atty., and Theodore Koffel, Asst. State's Atty. for Burleigh County, both of Bismarck, N. D., for respondent.

SPALDING, C. J.

The appellant herein, Fred Bismarck Strauss, is the executor of the last will and testament of Fred Strauss, late of Burleigh county, deceased. The respondent is the judge of the county court in and for Burleigh county. It appears from the petition that everything had been done necessary to entitle the petitioner to have his final report and account as executor allowed and the final decree of distribution made, except that he had not paid the inheritance tax provided for by chapter 185 of the Laws of 1913; chapter 10 of Probate Code; Complied Laws of 1913, §§ 8976-9000.

Application was made for the final decree of distribution without paying such inheritance tax. Such application was denied on the sole ground that such tax had not been paid, the court finding that all other things necessary and prerequisite to the issuance of such final decree had been done and performed, and its order was entered on the 28th day of March, 1914, denying the application. Thereupon appellant applied to the district court of Burleigh county, setting forth in his petition all the facts, for the issuance of a writ of mandamus, commanding the judge of said county court to issue such final decree without the payment of the inheritance tax. An alternative writ was issued, and on the return day respondent filed an answer and motion to quash, in which he admitted that appellant had done everything prerequisite and necessary to the entry of the final decree of distribution, except to pay the inheritance tax referred to, and alleging that an order had been entered in the county court on the 16th day of December, 1913, determining the amount of the inheritance tax due from the petitioner and one Cora Minnesota Strauss, sole legatees and devisees under the will of the deceased, as the sum of $1,477.32. Upon the failure of petitioner to pay the same, and upon the hearing, the district court quashed the alternative writ and denied the application, for the reason that such inheritance tax had not been paid. From this order the case is here on appeal.

[1] At the threshold of proceedings in this court we are met with the objection that mandamus is not the proper remedy to bring the questions involved before the district court, for the reason, among others, that such writ will, under section 8458, Comp. Laws of 1913, only issue where there is not a plain, speedy, and adequate remedy in the ordinary course of law. We regret that, under the provisions of the statute and the decisions of this court, we are required to determine this appeal upon this question of practice, but we have no alternative. Section 8600, Comp. Laws of 1913, designates the parties to a proceeding and persons in county court who may appeal to the district court, and it includes any party to the proceeding or other person having or claiming a right or interest affected by the order or decree appealed from. Section 8599, Comp. Laws 1913, is as follows:

“Any party or other person specified in the next section who deems himself aggrieved may appeal, as prescribed in this article, from a decree or from an order affecting a substantial right, made by a county court to the district court of the...