delivered the opinion of the court.
On the 26th of May of this year, J. M. Johnson commenced an action in the district court of Cascade county against Samuel Stephenson to recover the possession of certain personal property. The plaintiff in that action filed his affidavit as required by statute, gave an undertaking, and had his attorney indorse on the affidavit an order to the sheriff of Cascade county to seize the property in controversy. Thereafter, on the twenty-seventh day of May, the sheriff made due service on the defendant, who thereupon tendered to the sheriff cash in lieu of a redelivery bond or undertaking, but the amount so delivered was insufficient to meet the requirements of the statute. Thereafter the defendant Stephenson furnished to the sheriff a written undertaking, but the sureties thereon failed to justify within five days, or at all; and after the expiration of five days, and on the fourth day of June, the plaintiff demanded of the sheriff that he deliver possession of the property to him (plaintiff),, which the sheriff refused to do. Application is now made to this court for a writ of mandate to compel the sheriff to take the property in controversy and deliver it to the plaintiff. Upon the filing of the petition in this court, an alternative writ of mandate was issued, and upon the return the sheriff appeared by counsel and filed a motion to quash the alternative writ and dismiss the proceedings, and upon this, motion the cause was argued and submitted for our decision.
It is also suggested that the petitioner has a plain remedy, by an action against the sheriff for 'damages; but in Babcock v. Goodrich, 47 Cal. 488, it is said: “To supersede the remedy by mandamus, a party must not only have a specific, adequate legal remedy, but one competent to afford relief upon the very subject matter of his application. (Fremont v. Crippen, 10 Cal. 212, 70 Am. Dec. 711.) It is clear that an action for damages against the auditor, for neglect of duty, would not be equally convenient, beneficial and effective as the proceeding by mandate, since it would not compel him to do the specific act which the law requires him to perform.” (26 Cyc. 171.) The ease of Fremont v. Crippen, 10 Cal. 212, 70 Am. Dec. 711, involved the question of the right of the plaintiff in an action to have a writ of restitution executed by the sheriff. On petition for rehearing, the supreme court said: “The only point made in the petition which was decided in the opinion is that plaintiff’s remedy was by action on the sheriff’s bond, and not by mandamus. This objection is not well taken; the statute provides that a mandamus may issue ‘to any inferior tribunal, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, ’ and shall issue in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. Now, the execution of final process is specially enjoined by law on defendant, as a duty resulting from his office of sheriff, and
In State ex rel. Brickman v. Wilson, 123 Ala. 259, 26 South. 482, 45 L. R. A. 772, it is said: “The ‘other remedy,’ the existence of which will oust—or rather, prevent the invocation of— jurisdiction by mandamus, must be equally convenient, beneficial and effective as mandamus. (Citing cases.) It must be a remedy which will place the relator in statu quo; that is, in the same position he would have been had the duty been performed. (Etheridge v. Hall, 7 Port. (Ala.) 47.) Indeed, it must be more than this. It must be a remedy which itself enforces in some way the performance of the particular duty, and • not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance.”
Section 6631, Revised Codes, provides that in an action of claim and delivery the defendant may require the return of the property to him, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties. Section 6632 then provides: “The defendant’s sureties, upon notice to the plaintiff of not less than two nor more than five days, shall justify before the judge or clerk, in the same manner as upon bail on arrest; and upon such justification the sheriff must deliver the property to the defendant. The sheriff shall be responsible for the defendant’s sureties until they justify, or until the jus
Section 7214 provides that the writ of mandate may be issued by the supreme court to any person to compel the performance of an act which the law specially enjoins as a duty resulting from an office. But it is suggested that the utmost relief that can be afforded by this court will be to command the sheriff to
We think the facts sufficient to show that the plaintiff is entitled to the relief which he seeks, and a peremptory writ of mandate is directed to issue conformably with the prayer of the petition.
Writ granted.
In this case the right result has been reached, but I think by the wrong means. The application should have been for a writ of supervisory control, directed to the district court and requiring it to enforce the execution of its own process.