Webster v. Ballou

• Citation: 108 Me. 522,81 A. 1009
• Parties: WEBSTER v. BALLOU, Sheriff.
• Decision Date: 11 December 1911
• Court: Supreme Judicial Court of Maine (US)

81 A. 1009

108 Me. 522

WEBSTER

v. BALLOU, Sheriff.

Supreme Judicial Court of Maine.

Dec. 11, 1911.

Exceptions from Supreme Judicial Court, Sagadahoc County.

Petition by Joseph F. Webster for mandamus against John W. Ballou, Sheriff of Sagadahoc County. Petition denied, and defendant brings exceptions. Exceptions overruled, and peremptory writ directed.

The bill of exceptions states as follows:

"This was a petition for mandamus to compel the respondent to serve a writ of possession issuing out of the supreme judicial court for Sagadahoc county, in a real action wherein the petitioner, Joseph F. Webster, was plaintiff, and Francis Holmes defendant.

"The petition for mandamus is dated September 12, 1911, and was made returnable before Mr. Justice Haley on September 14th. On that date the alternative writ was, by agreement of parties, ordered to issue, and was issued; the return of the respondent Ballou thereto was filed, and also the petitioner's answer to the return. At the same time the motion of Clara A. Holmes for leave to intervene was presented to the justice.

"A hearing was had thereon and on the petition, at the conclusion of which the presiding justice denied the motion to intervene, and ordered that the peremptory writ issue.

"To the denial of the motion and the ordering of the peremptory writ, the respondent and the said Clara A. Holmes, by their attorney, seasonably excepted, and pray that their exceptions may be allowed."

The exceptions were allowed and certified to the Chief Justice for decision, as provided by Revised Statutes, c. 104, § 18.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ.

Foster & Foster and E. C. Plummer, for plaintiff.

Frank L. Staples, for John W. Ballou and Clara A. Holmes.

KING, J. At the August term, 1910, of the supreme judicial court for Sagadahoc county, the petitioner, Joseph F. Webster, recovered judgment against Francis Holmes for the possession of certain real estate in Bath, in that county. A writ of possession issued upon said judgment, and was placed in the hands of the respondent, John W. Ballou, sheriff of Sagadahoc county, commanding him "that without delay you cause the said Joseph F. Webster to have possession of and in the said premises." The sheriff did not execute the writ of possession, whereupon these proceedings for a writ of mandamus against him were commenced. In answer to the alternative writ, he made return that he had not executed the mandate of the writ of possession because he was notified "that Francis Holmes, the defendant in said writ of possession, was occupying a part or all of said premises as the tenant of one Clara A. Holmes, who, as he is informed and believes, and therefore avers, is the legal owner of a part or all of said described premises, and is, therefore, tenant in common with the petitioner of said premises; that he was notified that said Clara A. Holmes was in actual possession of said premises, and that any attempt to oust her from possession would result in legal proceedings against him; that, being in doubt what course to pursue, he consulted the attorneys of both the petitioner and of said Clara, and urged them to come to some adjustment of the matter, * * * and by reason of his doubt as to his legal right to actually evict the said Francis Holmes, and to oust said Clara A. Holmes from her possession, he has up to this time forborne to do so."

The said Clara A. Holmes presented a motion to the justice before whom the proceedings were pending, in which she set forth grounds on which she claims to be an owner of an undivided portion of the premises described in the writ of possession, and that the execution of the writ will be prejudicial to her rights and interests in the property, and praying that she might be permitted to intervene as a party defendant in the proceedings. Her motion to intervene was denied, and after hearing a decree was made that the peremptory writ be granted. To that ruling and decree exceptions were filed and allowed, and certified to the Chief Justice for decision, under the provisions of section 18, c. 104, R. S.

Mandamus is an appropriate and necessary proceeding where a petitioner shows: (1) That his right to have the act done, which is sought by the writ, has been legally established; (2) that it is the plain duty of the party against whom the mandate is sought to do the act, and in the doing of which no discretion may be exercised; (3) that the writ will be availing; and. that the petitioner has not other sufficient and adequate remedy. Dennett v. Mfg. Co., 106 Me. 476, 478, 76 Atl. 922.

In the case at bar, the petitioner's right to have immediate...