Armstrong v. Stansel

47 Fla. 127 | Fla. | 1904

Hocker, J.

(after stating the facts). — Among the assignments of error here is one that the court erred in denying the motion of E. S. Armstrong, one of the defendants in error, to quash the alternative writ.

In the case of State ex rel. Proseus v. Craft, 17 Fla. 722, this court held that the proceeding by mandamus can only be resorted to where there is no other adequate legal remedy to accomplish the purpose, and that if a sheriff refuses to execute the writ (execution) when it is his duty to execute it, the plaintiff may have his action at law against the sheriff. In the case of State ex rel. Bradley v. Cone, 40 Fla. 409, 25 South. Rep. 279, the doctrine of the case of Proseus v. Craft, supra, was referred to, approved and thoroughly elucidated, and in applying it the court says: “Mandamus does not lie to compel the sheriff to sell real-estate levied upon by him under an execution issued upon an ordinary money judgment, as in such case the relator has other adequate remedies at law against the sheriff for his neglect of duty.” It further says: “There are unquestionably ministerial duties of a sheriff that can be enforced by mandamus, as where he refuses to execute a writ of possession for specific property (Fremont v. Crippen, 10 Cal. 212, S. C. 70 Am. Dec. 711), but cases of this kind are clearly distinguishable from the case at bar. In the former the plaintiff in the writ is entitled to possession of specific property, and in such case no form of action at law or in equity against the sheriff can give him adequate relief; that is possession of the property. In this case, however, the relator is entitled- to nothing but the money on his judgment, and if the sheriff declines to collect it when it is his duty to do so, the relator has adequate remedies at law to recover damages for the respondent’s refusal or neglect to perform his duties (Love v. William, 4 Fla. 126), and in such case mandamus' will not lie to compel the sheriff to levy or sell. Habersham v. Sears, 11 Oregon 431, 5 Pac. Rep. 208, S. C. 50 Am. Rep. 481.” The doctrine of these cases is modified by chap. 4914, laws of Florida, 1901, to the extent that an officer who has in his. hands an unsatisfied execution, and whose duty it is to levy it, and who refuses to levy it upon property liable thereto, may be compelled b)>' mandamus proceedings to do so; but this statute does not go to the extent of authorizing the court by mandamus to compel the officer to sell the property upon which he has levied. Doubtless there were several reasons apparent to the legislature why the power conferred was confined to the power to compel a levy, as after a levy has been made questions as to the right of property might arise, which it would be inconvenient to determine in mandamus proceedings. In the case at bar there is in the alternative writ a distinct allegation that the respondent sheriff has already levied on the property, and the command thereof is that he continue the advertisement and carry out the sale. It is apparent, therefore, that this case is not within the purview of chap. 4914, laws of 1901, but that it must be controlled by the case of State ex rel. Bradley v. Cone, supra.

We are of opinion that the order of the Circuit Judge denying the motion to' quash the alternative writ was erroneous, and, therefore, it is considered and ordered that the judgment be reversed at the cost of the defendant in error, and that the cause be remanded for further proceedings in accordance with this opinion.

Taylor, C. J., and Cockrell, J., concur.

Carter, P. J., and Shackleford and Whitfield, JJ., concur in the opinion.