55 Iowa 215 | Iowa | 1880
The motion was overruled. It is now insisted such ruling
After the motion was overruled tbe defendants filed an answer, and there was,a trial on the merits. Under repeated decisions of this court tbe supposed error was waived.
It was tbe duty of tbe defendants to have “ caused tbe secretary” to certify said tax to tbe board of supervisors. Instead of so doing they directed tbe secretary not to do so. In so doing they exceeded their jurisdiction, and did an illegal act.
It is insisted manda'rrms, and not certiorari, was tbe proper remedy to correct tbe alleged wrong. Mandarrms compels tbe inferior tribunal, board or person to act, or perform a duty enjoined. Code, § 3373.
Certiorari lies when some act has been done by an inferior tribunal, board or officer in excess of their jurisdiction, or is otherwise illegal. Code, § 3216.
Neither writ can issue when there is any other “plain, speedy and adequate remedy.” Code, § § 3216, 3376.
It is clear, we think, tbe illegal direction given by tbe defendants to tbe secretary could not have been set aside if an action of mandamus bad been instituted. It is possible tbe order of tbe defendants might have been ignored, and they compelled to perform tbe duty enjoined by statute. Conceding this to be so, tbe plaintiff also bad tbe right, we think, to have tbe illegal action of tbe defendants set aside. As no appeal therefrom is allowed, tbe only remedy by which this could be accomplished was certiorari.
It is also insisted tbe action of tbe defendants was ministerial, and not judicial, and, therefore, certiorari is not tbe
We are not called on to determine whether the last part of the judgment of the Circuit Court is correct or not, because we do not understand such claim was made in the court below, but if it was it is not made here.
Affirmed.