Territory ex rel. County Commissioners v. Cavanaugh
| Decision Date | 01 May 1884 |
| Citation | 19 N.W. 413,3 Dakota 325 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Grand Forks County.
The facts appear in the opinion.
REVERSED.
Bosard & Clifford, for defendant and appellant. Points and authorities cited:
Mandamus lies where there is not a plain, speedy and adequate remedy in the ordinary course of law: Code of Civil Proc., Sec. 696. The converse is equally true: 4 Wait, 357. The test is whether the remedy at law will furnish the specific relief sought by the writ: People v. Loucks, 28 Cal. 68; id 365-371; Kimball v. Union Water Co., 44 Cal. 173; S. C. 13 Am. Rep., 157; 10 Am. Dec., 115; American Asylum v. Phoenix Bank, 4 Conn. 17; 19 Am. Dec., 508 n.; Michigan Paving Co. v Detroit, 34 Mich. 201. As to treasurer's compensation, Chap. 39, Sec. 15, Political Code.
E. St. Julian Cox, for plaintiff and respondent.
An action on an officer's bond is not a plain, speedy and adequate remedy: 47 Cal. 488; 2 Dillon Mun. Corp., 840 n., Sec. 910 n., p. 821 n. 2, 855, n. 829; Moses on Mandamus, 108 to 110, 242; 4 Wait's Ac. and Def., 368-9-70 and 375.
During the years 1879-80, the appellant was treasurer of the county of Grand Forks. In the year 1879 the respondents issued the bonds of said county to build a court house, to the amount of $ 10,000, and by said respondents sold without the intervention of the appellant, except that he received the money as treasurer. In 1881 said treasurer settled with the county commissioners, retaining out of the county funds in his hands the sum of $ 400, claimed as commissions on the proceeds of the bonds--$ 10,000--at four per cent. The respondents rejected such settlement and demanded the full sum in his hands, which demand was refused. Whereupon at the April term of said District Court, the respondents filed a petition for a writ of mandamus to compel said treasurer to pay over said $ 400, and thereupon the court ordered an alternative writ to issue, returnable at the same term. Upon the return of said writ the appellant appeared by counsel and moved to quash the writ, which motion was overruled by the court. Thereupon the appellant filed his answer. The court, after hearing the proofs, ordered a peremptory writ of mandamus to issue, from which order this appeal is taken.
The writ of mandamus can issue in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. If there is such remedy in the ordinary course of law it is very clear this writ cannot be invoked. We think the Political Code, section 95, of chapter 28, has provided such remedy by making it the duty of the county clerk, on receiving instructions for that purpose from the Territorial Auditor, or from the county commissioners of his county, to cause suit to be instituted against such treasurer and his sureties, or any of them, in the District Court of his county, to recover all...
To continue reading
Request your trial
-
State ex rel. Attorney General v. District Court of Fourth Judicial District
...if the court was in error in holding that it was without jurisdiction to try the action in the form it was brought. Territory v. Cavanaugh, 3 Dakota 325, 19 N.W. 413; State v. Osborn (Neb.) 83 N.W. 357; State Meiley, 22 Ohio St. 534; Goodwin v. Glazer, 10 Cal. 333; Louisville Railway Co. v.......
-
County Com'rs of Grand Forks County v. Cavanagh
... ... Com'rs Grand Forks Co. v. Cavanagh. Supreme Court of Territory of DakotaMay 12, 1884 ... Appeal ... from the ... In 1881 said treasurer settled with the county ... commissioners, retaining out of the county funds in his hands ... the sum of $400, ... ...