People ex rel. Bradley v. Judges of the Circuit Court

| Mich. | Jan 15, 1844

Goodwin, J.

delivered the opinion of the Court.

The grounds of the application are, that the original affidavit was a nullity, the clerk not having at the time any authority to take it; and that it was not competent for the Circuit Court to permit the new one to be filed, so as to save the proceedings.

If the grounds alledged are tenable, is the writ of mandamus the proper remedy?

It is a writ not resorted to, or issued, where the party has another remedy, but only in cases where there is a clear right, and no other remedy. Then it is, that this extraordinary writ is resorted to, for the advancement of justice.

Is there no other remedy for the supposed errors in this case ? It seems to me that there is ; — that the original affidavit, as well as the new one permitted to be filed, with the adjudication of the court directing it, would go upon the record, — the proceedings by attachment being special statutory proceedings, not according to the course of the common law, — and that the writ of certiorari would remove them to this court. True, it would not bring here the various affidavits, on which the motion was made and resisted, aside from those above mentioned, which would go upon the record. But they are immaterial, as the question is one going to the authority of the court in .the premises ; and all material to this would necessarily appear. As the proceeding is a special statutory proceeding, and the affidavit in the first instance is the foundation of it, this, of course, must appear in the record; and as the new affidavit was permitted to be filed under the statute, to sustain the proceedings, on the ground that the original, which preceded the writ, was defective, this must also, therefore, go upon the record, with the adjudication of the court so directing. These are not mere matters of practice in the Court below, but proceedings based on the special provisions of the statutes, under which these proceedings were had; and the writ of certiorari is the appropriate writ, whereby they would be removed to this Court.

We are therefore of opinion that, the applicant having another remedy, in the usual course of proceeding, this motion should be denied.

Motion denied.