6 N.W.2d 97 | Minn. | 1942
In a 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 and 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 expenses, 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 no 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 compel 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, while 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 court, 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 receive 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. §§
Decision below was predicated upon the sole ground that relator's exclusive remedy was by appeal and not bymandamus.
Mandamus will issue to compel judicial officers in the same manner and to the same extent as other 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 cannot 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 denial of a trial by jury falls within this rule. We had occasion to consider the question at 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 performance and only one course of action is open and where the aggrieved 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.
