dismissed the appeal. And in Nevada C. R. Co. v. District Ct. (1893) 21 Nev. 409, 32 Pac. 673, the two cases are cited to the proposition that if a justice of the peace dismisses the case for supposed lack of jurisdiction, mandamus will not lie, no matter how erroneous the order. But all of these cases are overruled by Floyd v. Sixth Judicial Dist. Ct. post, 646. In Kelsey v. Church (1906) 112 App. Div. 408, 98 N. Y. Supp. 535, supra, the court said:. "Is mandamus the proper remedy? No appeal lies from an ex parte order, because no effectual judgment or order could be made on the determination of the appeal, except in the nature of mandamus. Re Johnson (1882) 27 Hun (N. Y.) 538; People ex rel. Schlehr v. Buffalo (1883) 30 Hun (N. Y.) 636; Re Nottingham (1895) 88 Hun, 443, 34 N. Y. Supp. 404; Hayes v. Consolidated Gas Co. (1894) 143 N. Y. 641, 37 N. E. 648. The function of mandamus is to compel action, and not to review action taken. It can control the performance of a ministerial duty. It can require, but cannot control, the exercise of judgment or discretion. These propositions are elemental. The learned court at special term was of the opinion that mandamus would not lie, because the surrogate had a judicial discretion in the matter of granting these orders. This proposition, if I am correct, is untenable. He has no discretion, but of course is required to exercise judgment in determining whether a case is presented requiring him to act. If his refusal to act, upon the erroneous determination that he had not jurisdiction, cannot be corrected by mandamus, then I conceive that there can be few cases in which a judicial officer can be compelled to act, because he can usually say that he had to exercise judgment in determining whether a case was presented requiring action, and that he had exercised such judgment in determining that no action was required. In this case the refusal of the surrogate to act presents nothing for review. The petitioner seeks to compel him to act, not to control his action. An officer cannot refuse to discharge his duty, and then defeat mandamus by saying that he determined that no case was presented calling upon him for the discharge of such duty. What the petitioner seeks is a determination of this matter upon the merits. Of course, if, after the institution of the proper proceedings, the surrogate, in determining the matter upon the merits, should conclude that he had not jurisdiction to assess a tax, that conclusion could be reviewed only in the manner pointed out by the statute, to wit, by an appeal to the surrogate, and from his order on such appeal to the appellate division. No case has been called to our attention in which mandamus has been refused, where the officer has refused to act upon the erroneous assertion of want of jurisdiction; on the contrary, there is plenty of authority to the effect that the erroneous determination of want of jurisdiction, preliminary to acting at all, does not defeat a mandamus to compel a judicial officer to act. That mandamus in such case was the proper remedy was plainly stated by the court of appeals in Hayes v. Consolidated Gas Co. (N. Y.) supra, and by Judge Martin, speaking for the general term of the fourth department, in Re Nottingham (1895) 88 Hun, 443, 34 N. Y. Supp. 404, supra. To be sure these expressions were obiter, but there is controlling authority in this state on the proposition. See People ex rel. Allen v. Murray (1893) 2 Misc. 152, 23 N. Y. Supp. 160, affirmed in (1893) 50 N. Y. S. R. 535, 21 N. Y. Supp. 797, which is affirmed in (1893) 138 N. Y. 635, 33 N. E. 1084. The distinction between the erroneous determination of a question of jurisdiction preliminary to hearing the case at all, and such erroneous determination after a hearing upon the merits, is made plain by a comparison of the case last cited and the case of Re McBride (1893) 72 Hun, 394, 25 N. Y. Supp. 431. In the latter case the sole remedy is by appeal; in the former, mandamus will lie to compel action. See also Reg. v. Brown (1857) 7 El. & Bl. 757, 119 Eng. Reprint, 1427, 26 L. J. Mag. Cas. N. S. 183, 3 Jur. N. S. 745, 5 Week. Rep. 625; Reg. v. Monmouth (1870) L. R. 5 Q. B. (Eng.) 256, 39 L. J. Q. B. N. S. 77, 21 L. T. N. S. 748." In State ex rel. Atty. Gen. v. District Ct. (1904) 13 N. D. 211, 100 N. W. 248, the court said: "From the return to the alternative writ it appears that Judge Glaspell considered, and so decided, that § 363, Rev. Codes, the only statute under which any pretense of authority can be found to suspend a county officer pending an action for his removal,-has no application to a proceeding under chapter 24 of the Code of Civil Procedure, upon which the complaint in the action was founded; also that the complaint was insufficient to entitle plaintiff to proceed under chapter 24, Code Civ. Proc., for the removal of the defendant Moody from the office in which he is installed; that the court was without jurisdiction to try defendant for the purpose of removing him from office in proceedings under said chapter. Relator claims that the court was mistaken in holding that it was without jurisdiction to try a county officer for his removal from office in this form of action, and to suspend him; that mandamus is the proper remedy to coerce the trial court into taking and exercising the jurisdiction which it in fact possesses, and to hear the case, and render some decision therein upon the merits. It is conceded that in a proper case mandamus may issue to compel a court to proceed and try a cause, when it refuses to do so upon the erroneous decision that it has no jurisdiction. Merrill, Mandamus, § 203; 19 Am. & Eng. Enc. Law, 827, and cases in note. This remedy is not available, however, where there is another plain, speedy, and adequate remedy in the ordinary course of law to accomplish the same purpose. Rev. Codes, 1899, § 6111; Cattermole v. Ionia Circuit Judge (1904) 136 Mich. 274, 99 N. W. 1. Neither will it lie for the purpose of controlling an inferior court in the exercise of its judicial judgment or discretion. People ex rel. Sayer v. Garnett (1889) 130 Ill. 340, 23 N. E. 331. The district court did not refuse to exercise the jurisdiction it possessed in this case. On the contrary, it considered and passed up on the right of relator to maintain the action to remove a public officer in the form of action and under the statute upon which he relied, and determined that no such action would lie. In making this determination the court was acting within the scope of its jurisdiction, and determined a question properly before it for adjudication, and necessarily preliminary to a hearing of the motion to suspend. If the court decided erroneously, this was an error in the exercise of its jurisdiction, to be corrected on appeal. It cannot be compelled to reverse the decision on mandamus. People ex rel. Sayer v. Garnett (Ill.) supra; People ex rel. Doughty v. Judges of Dutchess C. P. (1839) 20 Wend. (N. Y.) 658; People ex rel. Wheaton v. Weston(1865) 28 Cal. 640; Ex parte Des Moines & M. R. Co. (1881) 103 U. S. 794, 26 L. ed. 461; Ex parte Hurn (1890) 13 L.R.A. 120, and note, 92 Ala. 102, 25 Am. St. Rep. 23, 9 So. 515; State ex rel. Ricardo v. Court of Common Pleas (1875) 38 N. J. L. 182; State ex rel. King v. District Ct. (1901) 25 Mont. 202, 64 Pac. 352; Ex parte Brown (1886) 116 U. S. 401, 29 L. ed. 676, 6 Sup. Ct. Rep. 387; 19 Am. & Eng. Enc. Law, 829. The distinction between a case where the lower court has refused to take jurisdiction, when, by law, it ought to do so, and one where it refuses to proceed in the exercise of jurisdiction it has obtained, is illustrated in Re Parker (1889) 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708. Referring to the case of Ex parte Brown (1886) 116 U. S. 401, 29 L. ed. 676, 6 Sup. Ct. Rep. 387, the court said: "The supreme court of the territory entertained jurisdiction of the cause which was brought before it by appeal, but dismissed it for want of due prosecution -that is to say, because errors had not been assigned in accordance with rules of practice applicable to the form of the action; and we held that the judgment could only be reviewed here on writ of error or appeal, as the case might be. In the case before us, the supreme court of the territory dismissed the appeal because not properly taken; that is, because the cause had not been brought before it from the lower court. The distinction in the two cases is obvious. In the one the court below had taken jurisdiction and acted, but in the present case it refused to take jurisdiction.' In Re Pennsylvania Co. (1890) 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141, it is decided that, after a case has proceeded to the filing of a declaration and a plea to the jurisdiction, or its equivalent, and a judgment is rendered in favor of the plea, and a consequent dismissal of the action, the plaintiff is confined to his remedy by writ of error, and cannot have a mandamus. In Shine v. Kentucky C. R. Co. (1887) 85 Ky. 177, 3 S. W. 18-an action under the statute for condemnation of land-the county court refused to impanel a jury to try the issue as to value, but, on objection of the defendant to the court's jurisdiction, dismissed the case. Mandamus was applied for to compel the county judge to impanel a jury and try the case. The court, in denying the writ, said: 'Unquestionably, the action of the county court was judicial. It did not refuse to act. It did act, as shown by the copy of its orders filed with the petition, and dismissed the proceeding upon the ground that the appellee could not maintain it, owing to the appointment of the receiver. It is unnecessary to decide whether the ruling was correct or not. The right of the appellee to maintain the proceeding was a question presented to the county court by the record for its decision. It exercised its judgment, and dismissed it because it was of the opinion that the appellee had no such power. It reached this conclusion in the exercise of its discretion, and, while mandamus will lie to set a court in motion, it cannot be used to control the result. It may compel the trial of an issue, but not how it shall be tried.'" The syllabus of State ex rel. Liggins V. Judges of First Circuit Ct. of Appeals (1895) 47 La. Ann. 1516, 18 So. 510, as well as some of the language used by the court, would seem to indicate that this was the ground upon which mandamus was refused. But the same court in the case of State ex rel. Beauvais v. Judges of Fifth Circuit Ct. of Appeals (1896) 48 La. Ann. 672, 19 So. 617, explains the Liggins Case as having been decided upon the ground that the inferior court was correct in holding that it lacked jurisdiction. The same may be said of State ex rel. Mutual Nat. Bank v. Judges of Ct. of Appeals (1897) 49 La. Ann. 1084, 22 So. 193, where it clearly appears that the decision of the lower court as to its lack of jurisdiction was correct. IV. As affected by question whether decision rests on a ruling of law or a determination of fact. Where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law, and not as a decision of fact, that it has no jurisdiction, and declines to proceed in the exercise of its jurisdiction, a mandamus will issue by a superior court compelling it to proceed, unless there is a specific and adequate remedy by appeal or writ of error. Gilbert v. Shaver (1909) 91 Ark. 231, 120 S. W. 833; Cahill v. Superior Ct. (1904) 145 Cal. 42, 78 Pac. 467 (rule merely recognized); De la Beckwith v. Superior Ct. (1905) 146 Cal. 496, 80 Pac. 717 (limitation merely recognized); Speckert v. Ray (Ky.) post, 603; State ex rel. Fleming v. Shackelford (1914) 263 Mo. 52, 172 S. W. 347; Ketchum Coal Co. v. District Ct. (Utah) post, 619; Christensen V. Christensen (Utah) post, 641; STATE EX REL. MARTIN V. SUPERIOR CT. (reported herewith) ante, 572; Reg. v. Leicester Freemen (1850) 15 Q. B. 671, 117 Eng. Reprint, 613, 14 Jur. 914, 19 L. J. Q. B. N. S. 413. In Cahill v. Superior Ct. (1904) 145 Cal. 42, 78 Pac. 467, supra, the court said: "This court has held that where the jurisdiction of the superior court to try a cause or hear an appeal depends on the existence of certain facts, and that court has, upon evidence consisting either of affidavits or of the record, made its determination as to the facts, although erroneously, this court cannot, in mandamus proceedings, go behind this determination, and itself consider from evidence whether or not the jurisdiction existed; and this seems to be the law, even where there is no conflict in the evidence, and the court below has acted judicially only to the extent that it has determined the existence of facts from evidence, and where the facts thus determined did not in law justify the decision of the superior court that it did not have jurisdiction. Thus, where the lower court, acting as a court of appeal, has decided that the record in a case from a justice's court did not give the superior court jurisdiction of the appeal, because the notice of appeal did not have a revenue stamp attached, or because, in an appeal on questions of law alone, there was no statement on appeal, and has thereupon dismissed the appeal (People ex rel. Wheaton v. Weston (1865) 28 Cal. 640; Lewis v. Barclay (1868) 35 Cal. 213); or where the superior court, upon affidavits, removed the cause to the United States district court, and refused to proceed further therein (Francisco v. Manhattan Ins. Co. (1868) 36 Cal. 286); or, upon the facts stated in a petition to be allowed to intervene, had refused to allow the intervention (People v. Sexton (1869) 37 Cal. 532); or, after considering the condition of its calendar and other facts and circumstances tending to excuse the failure to try a criminal case within sixty days after the filing of the information, had refused to dismiss the cause (Strong v. Grant (1893) 99 Cal. 100, 33 Pac. 733); or, upon the facts stated in an accusation filed under § 772 of the Penal Code, had refused to issue a citation against the accused officer (Kerr v. Superior Ct. (1900) 130 Cal. 184, 62 Pac. 479). In all these cases the determination of the superior court as to its jurisdiction of the particular cause upon the facts shown has been deemed final and conclusive upon this court, where a review of that determination was sought by proceedings in mandamus. The distinction between this class of cases and the case at bar is this: In all these cases the superior court was called upon to consider either the sufficiency of certain facts established by the record, or certain facts determined by that court upon evidence properly addressed to it, to give it jurisdiction to proceed with the particular case then before the court; and with its decision, after such consideration, this court cannot interfere by mandamus. In the case at bar there was no question of fact involved, and the superior court decided that, as a matter of law purely, it could not in any case vacate an order made under the provisions of § 1465 of the Code of Civil Procedure, setting apart a homestead. This was a proposition not dependent on any facts whatever, but wholly upon a consideration of the powers of the court as defined by the Constitution and by statute." In State ex rel. Fleming v. Shackelford (1914) 263 Mo. 52, 172 S. W. 347, the court said: "The doctrine, shortly summarized, is this: If the lower court, upon a preliminary question of jurisdiction, which question of jurisdiction is to be determined from the law of the case rather than the facts, resolves the question of jurisdiction against the applicant or plaintiff, and for that reason declines to consider the merits of the case, then mandamus will lie to compel such court to proceed upon the merits, if we, under the law, determine that such court possesses the jurisdiction. Of course, if jurisdiction is dependent upon facts, then we have a different proposition. State ex rel. Crouse v. Mills (1910) 231 Mo. 500, 133 S. W. 22. Upon this record we conclude (1) that the probate court only passed upon the preliminary matter of jurisdiction, (2) that it did not undertake to pass upon the merits or demerits of relator's application, and (3) that if the said court was in error as to its jurisdiction then this writ should go." The distinction discussed in this subdivision is of especial importance in cases in which jurisdiction was refused because of insufficiency or lack of service, as that frequently involves a determination of facts rather than a ruling on the law. For this class of cases, see annotation following Speckert v. Ray, post, 610. V. Existence of other remedies. On the general question of adequacy of remedy by appeal or writ of 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. (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 it 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 |