Windfrey v. Benton

• Decision Date: 11 January 1910
• Citation: 106 P. 853,25 Okla. 445,1910 OK 39
• Parties: WINDFREY v. BENTON et al.
• Court: Oklahoma Supreme Court

106 P. 853

25 Okla. 445, 1910 OK 39

WINDFREY v. BENTON et al.

Supreme Court of Oklahoma

January 11, 1910

Syllabus by the Court.

Mandamus lies to require a court to exercise its lawful jurisdiction but not to coerce a particular judgment, or to rectify an erroneous one.

Defendants in an action before a justice of the peace filed an affidavit setting up that, on account of the bias and prejudice of the justice against them, they believed they could not have a fair and impartial trial before him, and thereby sought to have a trial of the case changed to some other justice of the peace. This affidavit and application the justice denied kept jurisdiction, and rendered judgment in the case. At the time of the denial of the application for change of venue defendants sued out a writ of mandamus in the district court and on a trial, a judgment was rendered in which the justice was ordered to grant the change. On appeal to this court from such judgment, the same is held error, as a writ of mandamus would not lie to compel the justice of the peace to reverse his erroneous ruling in denying such application for change of venue, for the reason that defendants had a plain and adequate remedy by appeal or error.

Error from District Court, Carter County; S. H. Russel, Judge.

Action by M. F. Windfrey against E. E. Benton and another. From a judgment granting a writ of mandamus, compelling a justice to grant a change of venue, plaintiff brings error. Reversed and dismissed.

Williams, J., dissenting.

Thos. Morman and H. A. Ledbetter, for plaintiff in error.

J. T. Coleman, for defendants in error.

DUNN J.

This case presents error from the district court of Carter county, and submits for our consideration and determination the question of whether or not mandamus is the proper remedy to be applied where a justice of the peace wrongfully denies a change of venue, where a party in his court makes proper application for the same. Defendants in error, who were defendants in the action before the justice of the peace, filed an affidavit for change of venue under section 70, art. 7, c. 67 (section 4997) Wilson's Rev. & Ann. St. Okl. 1903, which was denied. Immediately thereafter, and on the same day, the writ in the case at bar was sued out of the district court, but the justice proceeded and rendered judgment. Section 687, art. 33, c. 66 (section 4885) Wilson's Rev. & Ann. St. Okl. 1903, referring to the writ of mandamus, provides: "This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law." The questions presented are: Is the writ available for the purpose for which it was here issued, and did the parties seeking the same have a plain and adequate remedy in the justice court? If the writ will lie, and defendants had no complete remedy, then the action is proper, and should be sustained; but, if it is not available for the purpose to which it was put, or if they could have obtained relief, and it was plain and adequate in the ordinary course of the law, then this proceeding was improperly brought, and cannot be sustained.

The general rule obtaining in such cases is stated by Mr Spelling in his work on Extraordinary Relief, at section 1390, as follows: "Mandamus being an extraordinary remedial process should never be employed where the party seeking it may obtain redress in the ordinary course of judicial proceedings, in the one case by original action, and in the other by employing the means...