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dismissed the appeal. And in Nevada and then defeat mandamus by saying C. R. Co. v. District Ct. (1893) 21 Nev. that he determined that no case was 409, 32 Pac. 673, the two cases are presented calling upon him for the cited to the proposition that if a jus- discharge of such duty. What the tice of the peace dismisses the case petitioner seeks is a determination of for supposed lack of jurisdiction, man- this matter

upon the merits. Of damus will not lie, no matter how er- course, if, after the institution of the roneous the order. But all of these proper proceedings, the surrogate, in cases are overruled by Floyd v. Sixth determining the matter upon the merJudicial Dist. Ct. post, 646.

its, should conclude that he had not In Kelsey v. Church (1906) 112 App. jurisdiction to assess a tax, that conv()

a Div. 408, 98 N. Y. Supp. 535, supra, the clusion could be reviewed only in the court said:. “Is mandamus the proper manner pointed out by the statute, to remedy? No appeal lies from an ex wit, by an appeal to the surrogate, and parte order, because no effectual judg- from his order on such appeal to the ment or order could be made on the appellate division. No case has been determination of the appeal, except in called to our attention in which manthe nature of mandamus. Re Johnson damus has been refused, where the of(1882) 27 Hun (N. Y.) 538; People ficer has refused to act upon the ex rel. Schlehr v. Buffalo (1883) 30 erroneous assertion of want of jurisHun (N. Y.) 636; Re Nottingham diction; on the contrary, there is (1895) 88 Hun, 443, 34 N. Y. Supp. plenty of authority to the effect that 404; Hayes v. Consolidated Gas Co. the erroneous determination of want (1894) 143 N. Y. 641, 37 N. E. 648. The of jurisdiction, preliminary to acting function of mandamus is to compel at all, does not defeat a mandamus to action, and not to review action taken. compel a judicial officer to act. That It can control the performance of a mandamus in such case was the propministerial duty. It can require, but er remedy was plainly stated by the cannot control, the exercise of judg- court of appeals in Hayes v. Consoliment or discretion. These proposi- dated Gas Co. (N. Y.) supra, and by tions are elemental. The learned Judge Martin, speaking for the gencourt at special term was of the opin- eral term of the fourth department, ion that mandamus would not lie, be

in Re Nottingham (1895) 88 Hun, 443, cause the surrogate had a judicial dis

34 N. Y. Supp. 404, supra. To be sure cretion in the matter of granting these

these expressions were obiter, but orders. This proposition, if I am cor

there is controlling authority in this rect, is untenable. He has no discre

state on the proposition. See People tion, but of course is required to exer

ex rel. Allen v. Murray (1893) 2 Misc. cise judgment in determining whether

152, 23 N. Y. Supp. 160, affirmed in a case is presented requiring him to act. If his refusal to act, upon the

(1893) 50 N. Y.S. R. 535, 21 N. Y. Supp.

797, which is affirmed in (1893) 138 erroneous determination that he had

N. Y. 635, 33 N. E. 1084. The distincnot jurisdiction, cannot be corrected

tion between the erroneous determinaby mandamus, then I conceive that

tion of a question of jurisdiction prethere can be few cases in which a

liminary to hearing the case at all, and judicial officer can be compelled to act,

such erroneous determination after a because he can usually say that he

hearing upon the merits, is made plain had to exercise judgment in determin

by a comparison of the case last cited ing whether a case was presented re

and the case of Re McBride (1893) 72 quiring action, and that he had exer

Hun, 394, 25 N. Y. Supp. 431. In the cised such judgment in determining latter case the sole remedy is by apthat no action was required. In this peal; in the former, mandamus will lie case the refusal of the surrogate to to compel action. See also Reg. v. act presents nothing for review. The Brown (1857) 7 El. & Bl. 757, 119 Eng. petitioner seeks to compel him to act, Reprint, 1427, 26 L. J. Mag. Cas. N. S. not to control his action. An officer 183, 3 Jur. N. S. 745, 5 Week. Rep. 625; cannot refuse to discharge his duty, Reg. v. Monmouth (1870) L. R. 5 Q. B. (Eng.) 256, 39 L. J. Q. B. N. S. 77, on the right of relator to maintain the 21 L. T. N. S. 748."

action to remove a public officer in In State ex rel. Atty. Gen. v. District the form of action and under the statCt. (1904) 13 N. D. 211, 100 N. W. 248, ute upon which he relied, and deter. the court said: “From the return to mined that no such action would lie. the alternative writ it appears that In making this determination the court Judge Glaspell considered, and so de- was acting within the scope of its cided, that $ 363, Rev. Codes,—the only jurisdiction, and determined a quesstatute under which any pretense of tion properly before it for adjudicaauthority can be found to suspend a tion, and necessarily preliminary to a county officer pending an action for hearing of the motion to suspend. If his removal,-has no application to a the court decided erroneously, this proceeding under chapter 24 of the was an error in the exercise of its Code of Civil Procedure, upon which jurisdiction, to be corrected on appeal. the complaint in the action was found- It cannot be compelled to reverse the ed; also that the complaint was in- decision on mandamus. People ex rel. sufficient to entitle plaintiff to proceed Sayer v. Garnett (Ill.) supra; People under chapter 24, Code Civ. Proc., for ex rel. Doughty v. Judges of Dutchess the removal of the defendant Moody C. P. (1839) 20 Wend. (N. Y.) 658; from the office in which he is in- People ex rel. Wheaton v. Weston stalled; that the court was without (1865) 28 Cal. 640; Ex parte Des jurisdiction to try defendant for the Moines & M. R. Co. (1881) 103 U. S. · purpose of removing him from office 794, 26 L. ed. 461; Ex parte Hurn in proceedings under said chapter. (1890) 13 L.R.A. 120, and note, 92 Ala. Relator claims that the court was mis- 102, 25 Am. St. Rep. 23, 9 So. 515; taken in holding that it was without State ex rel. Ricardo v. Court of Comjurisdiction to try a county officer for mon Pleas (1875) 38 N. J. L. 182; his removal from office in this form State ex rel. King V. District Ct. of action, and to suspend him; that (1901) 25 Mont. 202, 64 Pac. 352; Ex mandamus is the proper remedy to parte Brown (1886) 116 U. S. 401, 29 coerce the trial court into taking and L. ed. 676, 6 Sup. Ct. Rep. 387; 19 Am. exercising the jurisdiction which it & Eng. Enc. Law, 829. The distincin fact possesses, and to hear the case, tion between a case where the lower and render some decision therein upon court has refused to take jurisdiction, the merits. It is conceded that in a when, by law, it ought to do so, and proper case mandamus may issue to one where it refuses to proceed in compel a court to proceed and try a the exercise of jurisdiction it has obcause, when it refuses to do so upon tained, is illustrated in Re Parker the erroneous decision that it has no (1889) 131 U. S. 221, 33 L. ed. 123, jurisdiction. Merrill, Mandamus, & 9 Sup. Ct. Rep. 708. Referring to the 203; 19 Am. & Eng. Enc. Law, 827, and case of Ex parte Brown (1886) 116 cases in note. This remedy is not U. S. 401, 29 L. ed. 676, 6 Sup. Ct. Rep. available, however, where there is an- 387, the court said: "The supreme other plain, speedy, and adequate rem- court of the territory entertained juedy in the ordinary course of law to

risdiction of the cause which was accomplish the same purpose. Rev. brought before it by appeal, but disCodes, 1899, § 6111; Cattermole v.

missed it for want of due prosecution Ionia Circuit Judge (1904) 136 Mich.

—that is to say, because errors had 274, 99 N. W. 1. Neither will it lie for

not been assigned in accordance with the purpose of controlling an inferior rules of practice applicable to the court in the exercise of its judicial

form of the action; and we held that judgment or discretion. People ex the judgment could only be reviewed rel. Sayer v. Garnett (1889) 130 Ill. here on writ of error or appeal, as the 340, 23 N. E. 331. The district court case might be. In the case before us, did not refuse to exercise the jurisdic- the supreme court of the territory distion it possessed in this case. On the missed the appeal because not propcontrary, it considered and passed up- erly taken; that is, because the cause

had not been brought before it from rel. Beauvais v. Judges of Fifth Cirthe lower court. The distinction in cuit Ct. of Appeals (1896) 48 La. the two cases is obvious. In the one Ann. 672, 19 So. 617, explains the Ligthe court below had taken jurisdiction gins Case as having been decided upand acted, but in the present case it on the ground that the inferior court refused to take jurisdiction. In Re was correct in holding that it lacked Pennsylvania Co. (1890) 137 U. S. 451, jurisdiction. The same may be said 34 L. ed. 738, 11 Sup. Ct. Rep. 141, it of State ex rel. Mutual Nat. Bank v. is decided that, after a case has pro- Judges of Ct. of Appeals (1897) 49 ceeded to the filing of a declaration and La. Ann. 1084, 22 So. 193, where it a plea to the jurisdiction, or its equiv- clearly appears that the decision of alent, and a judgment is rendered in the lower court as to its lack of jurisfavor of the plea, and a consequent diction was correct. dismissal of the action, the plaintiff is confined to his remedy by writ of

IV. As affected by question whether deci. error, and cannot have a mandamus.

sion rests on a ruling of law or a de

termination of fact. In Shine v. Kentucky C. R. Co. (1887) 85 Ky. 177, 3 S. W. 18—an action un

Where a court declines jurisdiction der the statute for condemnation of

by mistake of law, erroneously decidland—the county court refused to im

ing as a matter of law, and not as a panel a jury to try the issue as to

decision of fact, that it has no jurisvalue, but, on objection of the defend

diction, and declines to proceed in the ant to the court's jurisdiction, dis

exercise of its jurisdiction, a manmissed the case. Mandamus was ap

damus will issue by a superior court plied for to compel the county judge

compelling it to proceed, unless there to impanel a jury and try the case.

is a specific and adequate remedy by

appeal or writ of error. Gilbert v. The court, in denying the writ, said: “Unquestionably, the action of the

Shaver (1909) 91 Ark. 231, 120 S. W.

833; Cahill v. Superior Ct. (1904) 145 county court was judicial. It did not

Cal. 42, 78 Pac. 467 (rule merely recrefuse to act. It did act, as shown

ognized); De la Beckwith v. Superior by the copy of its orders filed with the

Ct. (1905) 146 Cal. 496, 80 Pac. petition, and dismissed the proceeding

717 (limitation merely recognized); upon the ground that the appellee could

Speckert v. Ray (Ky.) post, 603; State not maintain it, owing to the appoint

ex rel. Fleming v. Shackelford (1914) ment of the receiver. It is unneces

263 Mo. 52, 172 S. W. 347; Ketchum sary to decide whether the ruling was

Coal Co. v. District Ct. (Utah) post, correct or not. The right of the ap

619; Christensen

Christensen pellee to maintain the proceeding was (Utah) post, 641; STATE EX REL. MARa question presented to the county

TIN V. SUPERIOR CT. (reported herecourt by the record for its decision. with) ante, 572; Reg. V. Leicester It exercised its judgment, and dis- Freemen (1850) 15 Q. B. 671, 117 Eng. missed it because it was of the opin- Reprint, 613, 14 Jur. 914, 19 L. J. Q. B. ion that the appellee had no such pow- N. S. 413. er. It reached this conclusion in the In Cahill v. Superior Ct. (1904) 145 exercise of its discretion, and, while Cal. 42, 78 Pac. 467, supra, the court mandamus will lie to set a court in said: “This court has held that where motion, it cannot be used to control the the jurisdiction of the superior court result. It may compel the trial of an to try a cause or hear an appeal deissue, but not how it shall be tried.'” pends on the existence of certain facts,

The syllabus of State ex rel. Liggins and that court has, upon evidence conv. Judges of First Circuit Ct. of Ap- sisting either of affidavits or of the peals (1895) 47 La. Ann. 1516, 18 So. record, made its determination as to 510, as well as some of the language the facts, although erroneously, this used by the court, would seem to in- court cannot, in mandamus proceeddicate that this was the ground upon ings, go behind this determination, and which mandamus was refused. But itself consider from evidence whether the same court in the case of State ex or not the jurisdiction existed; and

V.

this seems to be the law, even where evidence properly addressed to it, to there is no conflict in the evidence, give it jurisdiction to proceed with

, and the court below has acted judicial- the particular case then before the ly only to the extent that it has de- court; and with its decision, after such termined the existence of facts from consideration, this court cannot inter

vidence, and where the facts thus de- fere by mandamus. In the case at bar termined did not in law justify the there was no question of fact involved, decision of the superior court that it and the superior court decided that, did not have jurisdiction. Thus, where as a matter of law purely, it could the lower court, acting as a court of not in any case vacate an order made appeal, has decided that the record in under the provisions of § 1465 of the a case from a justice's court did not Code of Civil Procedure, setting apart give the superior court jurisdiction of a homestead. This was a proposition the appeal, because the notice of ap- not dependent on any facts whatever, peal did not have a revenue stamp at- but wholly upon a consideration of tached, or because, in an appeal on the powers of the court as defined by questions of law alone, there was the Constitution and by statute." statement on appeal, and has there- In State ex rel. Fleming v. Shackelupon dismissed the appeal (People ex ford (1914) 263 Mo. 52, 172 S. W. 347, rel. Wheaton v, Weston (1865) 28 Cal. the court said: “The doctrine, shortly 640; Lewis v. Barclay (1868) 35 Cal. summarized, is this: If the lower 213); or where the superior court, up- court, upon a preliminary question of on affidavits, removed the cause to jurisdiction, which question of juristhe United States district court, and diction is to be determined from the refused to proceed further therein law of the case rather than the facts, (Francisco V. Manhattan Ins. Co. resolves the question of jurisdiction (1868) 36 Cal. 286); or, upon the facts against the applicant or plaintiff, and stated in a petition to be allowed to for that reason declines to consider intervene, had refused to allow the the merits of the case, then mandamus intervention (People v. Sexton (1869) will lie to compel such court to pro37 Cal. 532); or, after considering the ceed upon the merits, if we, under the condition of its calendar and other law, determine that such court posfacts and circumstances tending to sesses the jurisdiction. Of course, if excuse the failure to try a criminal jurisdiction is dependent upon facts, case within sixty days after the filing then we have a different proposition. of the information, had refused to dis- State ex rel. Crouse v. Mills (1910) miss the cause (Strong v. Grant

231 Mo. 500, 133 S. W. 22. Upon this (1893) 99 Cal. 100, 33 Pac. 733); or,

record we conclude (1) that the proupon the facts stated in an accusation

bate court only passed upon the prefiled under $ 772 of the Penal Code,

liminary matter of jurisdiction, (2)

that it did not undertake to pass upon had refused to issue a citation against

the merits or demerits of relator's apthe accused officer (Kerr v. Superior

plication, and (3) that if the said Ct. (1900) 130 Cal. 184, 62 Pac. 479).

court was in error as to its jurisdicIn all these cases the determination

tion then this writ should go." of the superior court as to its juris

The distinction discussed in this diction of the particular cause upon

subdivision is of especial importance the facts shown has been deemed

in cases in which jurisdiction was refinal and conclusive upon this court,

fused because of insufficiency or lack where a review of that determination

of service, as that frequently involves was sought by proceedings in manda

a determination of facts rather than The distinction between this

a ruling on the law. For this class of class of cases and the case at bar is

cases, see annotation following Speckthis: In all these cases the superior

ert v. Ray, post, 610. court was called upon to consider either the sufficiency of certain facts V. Existence of other remedies. established by the record, or certain On the general question of adefacts determined by that court upon quacy of remedy by appeal or writ of

mus.

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error, see note to Ketchum Coal Co. v. District Ct. post, 632.

In cases in which the court had refused to proceed or had dismissed the cause on the ground that it lacked jurisdiction, it has been held that a mandamus should be refused, on the ground that the complainant had or could have had an adequate remedy by appeal or writ of error:

United States.-Re Morrison (1893) 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. Rep. 246 (see also Rose's Notes to this case); Re Key (1903) 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624; United States ex rel. Mudsill Min. Co. v. Swan (1895) 13 C. C. A. 77, 31 U. S. App. 112, 65 Fed. 647.

California.-Aldrich v. Superior Ct. (1901) 135 Cal. 12, 66 Pac. 846; Cahill v. Superior Ct. (1904) 145 Cal. 42, 78 Pac. 467 (rule merely recognized).

Florida.-Crump v. Branning (1917) - Fla. — 77 So. 228 (rule merely recognized).

Kentucky - Shine v. Kentucky C. R. Co. (1887) 85 Ky. 177, 3 S. W. 18 (other reasons given also); Coheen v. Myers (1857) 18 B. Mon 424; Speckert v. Ray, post, 603.

Louisiana.State v. Morgan (1838) 12 La. 118; State ex rel. Halphen v. Hudspeth (1886) 38 La. Ann. 97.

Michigan.-Hitchcock v. Wayne Circuit Judge (1906) 144 Mich. 362, 107 N. W. 1123; Stevens v. Wayne Circuit Judge (1910) 161 Mich. 130, 125 N. W. 695.

Missouri.—State ex rel. Lamport v. Robinson (1914) 257 Mo. 584, 165 S. W. 997; State ex rel. South St. Joseph Town Co. v. Mosman (1905) 112 Mo. App. 540, 87 S. W. 75; State ex rel. Mary Frances Realty Co. v. Homer (1910) 150 Mo. App. 325, 130 S. W. 510.

New York.-Re Bunk (1911) 200 N. Y. 447, 94 N. E. 363.

North Dakota.—State ex rel. Atty. Gen. v. District Ct. (1904) 13 N. D. 211, 100 N. W. 248.

Pennsylvania.—Com. v. Judges of Common Pleas (1810) 3 Binn. 273.

Utah.—Kyrimes v. Kyrimes (1914) 45 Utah, 168, 143 Pac. 232; Ketchum Coal Co. v. District Ct. post, 619; Christensen v. Christensen, post, 641.

Vermont. Woodstock V. Gallup (1856) 28 Vt. 587.

Washington.-State ex rel. Townsend Gas & E. L. Co. v. Superior Ct. (1899) 20 Wash. 502, 55 Pac. 933; State ex rel. Barbo v. Hadley (1899) 20 Wash. 520, 56 Pac. 29; State ex rel. Strohl v. Superior Ct. (1899) 20 Wash. 545, 45 L.R.A. 177, 56 Pac. 35 (rule not applied); State ex rel. McIntyre v. Superior Ct. (1899) 21 Wash. 108, 57 Pac. 352; State ex rel. Washington Dredging & Improv. Co. v. Moore (1899) 21 Wash. 629, 59 Pac. 505; State ex rel. Hubbard v. Superior Ct. (1901) 24 Wash. 438, 64 Pac. 727; State ex rel. Piper v. Superior Ct. (1906) 45 Wash. 196, 87 Pac. 1120 (and see dissenting opinion in the reported case, STATE EX REL. MARTIN V. SUPERIOR CT. ante, 572).

The facts in the case of Aldrich v. Superior Ct. (1901) 35 Cal. 12, 66 Pac. 846, supra, were almost identical with those involved in STATE EX REL, MARTIN V. SUPERIOR CT., and the court took the view of the dissenting judge in the latter case, i. e., that mandamus could not be issued where there was an adequate remedy by appeal.

This was also assumed in Moch v. Superior Ct. (1919)

Cal. App. —, 179 Pac. 440, but in that case it was held that there was no remedy by appeal, and consequently mandamus would lie.

In the case of Re Bunk (N. Y.) supra, the court said: "The proceeding originated in an application for a peremptory writ of mandamus directed to a judicial officer, requiring him to take cognizance of a proceeding in his court. This form of the writ may only be issued, in the first instance, where the applicant establishes a clear right to the mandamus as a matter of law (Code Civ. Proc. $ 2070), and

will never be issued against a court or judicial officer where there is a remedy by appeal from a decision which is attacked as being erroneous. In the case at bar the peremptory writ was properly invoked, for it was the appellant's only remedy. The denial of his ex parte application to the surrogate's court for leave to account gave him no right to appeal. If he is

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