See State ex rel. Gresham v. Delaney,
In а civil action pending before respondent, a justice of the peace of the city of St. Paul, relator was defendant. She demanded a trial by jury аnd paid the statutory fee therefor of $12 for one day’s attendance of a jury. Respondent refused to issue a venire to the proper officer to summon a jury unless relator also advanced the costs and expensеs, consisting of justice’s and constable’s fees, estimated to be $12. Relator refused to deposit the costs and expenses, claiming that the justice had nо power to require their payment. Upon refusal of the justice to issue a venire, relator applied to the district court for a writ of mandamus to comрel the issuance of venire without payment of the justice’s and constable’s fees, and appeals from a judgment denying the writ.
Here, as below, relator contended that she was entitled to a trial by jury upon payment of the fees for one day’s attendance of the jury. Respondent contended that, whilе Minn. St. 1941, §§ 531.33 to 531.35 (Mason St. 1927, §§ 9034-9036), relating to the issuance of a venire and summoning a jury in justice cоurt, provides for payment of the fees for one day’s attendance of a jury with no mention of the fees of the justice or the sheriff or constable for their services in connection with such matter, he was entitled to receivе an additional amount to cover the fees which a justice and a sheriff or constable are entitled to receive for summoning a jury under Id. §§ 357.09, 357.14 (§§ 6993, 6998), for nonpаyment of which he had the right to proceed to try the case without a jury, and, furthеr, that relator’s remedy for error, if any, in so deciding that question, was by appеal and not by mandamus.
*219 Decision below was predicated upon the sole ground that relator’s exclusive remedy was by appeal and not by mandamus.
Mandamus
will issue to compel judicial officers in the same manner and to the same extent as othеr public officers to perform duties with respect to which they plainly have no discretion as to the precise manner of performance and where only one course of action is open.
Mandamus
is not a substitute for, and сannot be used as, an appeal or writ of error. Ordinarily, where a party has an adequate remedy by appeal, a writ of
mandamus
should be denied. The dеnial of a trial by jury falls within this rule. We had occasion to consider the question аt length, reviewing the authorities here and elsewhere, in Swanson v. Alworth,
. Of course, where the duty does not permit the exercise of any discretion with respect to its performanсe and only one course of action is open and where the aggriеved party does not have an adequate remedy by appeal, as where . the duty is to entertain jurisdiction of an action and the court refuses to do so (see Swanson v. Alworth,
Affirmed.