66 Cal. 351 | Cal. | 1885
An action entitled Harris v. Careaga was referred by the Superior Court of Santa Barbara county to the defendant herein, “ to try all the issues of law and fact in said cause, and to report findings and a judgment thereon.” The case was
But it appears that subsequent to the filing of the findings and judgment, and within statutory time thereafter, the defendant duly served and filed a notice of intention to move for a new trial of the action, and within due time thereafter prepared and served upon the attorneys for the plaintiff in the action his proposed statement on the motion, who, reserving the right to object to the settlement thereof, proposed amendments thereto. Within proper time thereafter, the proposed statement and amendments were presented to the referee for settlement, which was continued from time to time until the 14th of May, 1883, at which time the respective parties, by their attorneys, appeared before the referee, when the attorney for the plaintiff objected to the settlement of the proposed statement, his objection being based on the fact of the former proceedings for a new trial. Subsequently, the respective parties were heard upon the objections, and on the 14th of June, 1883, the referee made and filed an order in writing, sustaining the plaintiff’s objections to the settlement of the statement, and refusing to settle the same. On the 9th of May, 1884, and after the decision of this court, holding the proceedings for new trial, first alluded to herein, ineffectual, the defendant applied to the court for a writ of
For the appellant, it is said that the order of the referee refusing to settle the statement is appealable, and therefore that mandamus will not lie. If appellant’s premise in this regard be conceded, his conclusion does not follow. Where the remedy by appeal is inadequate, the existence of such a remedy is not an answer to the application for the writ. (Merced M. Co. v. Fremont, 7 Cal. 130.) It is plain that an appeal from the action of the referee refusing to settle the statement, conceding that the right of appeal existed, would not have afforded the defendant an adequate remedy ; for if on such appeal the order should be reversed, it would not secure the aggrieved party the right erroneously denied him, namely, the settlement of the statement. The referee might still refuse to settle it, and defendant at last be compelled to resort to mandamus. The statement in question having been presented in due time, the law enjoined upon the referee the duty to settle it, and the writ of mandate will issue to compel the discharge of the duty. (Lin Tai v. Hewill, 56 Cal. 118; People v. Crane, 60 Cal. 279.) There was no such laches as precluded a resort to this remedy on the part of the defendant.
Judgment affirmed.
McKee, J., and McKinstry, J., concurred.
Hearing in Bank denied.