State ex rel. Moshner v. Wright, 26 Mont. 540

State ex rel. Moshner v. Wright

26 Mont. 540 | Mont. | 1902

ME. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal from an order granting a writ of mandate. A decree of foreclosure of liens, and an order of sal© under the decree, were, respectively, made and issued in a number of actions which had been consolidated. The order of sale, directing several pieces of property to¡ be sold, was placed in the hands of the sheriff, which officer- sold all but one certain piece of property. The order of sale was returned by the sheriff with a certificate that all of the property was sold, excepting *542one pieces upon which there was a certain lien. About three years later the relator demanded of the clerk of thei district court that an alias order of sale be issued out of his office,directing the sheriff to sell the certain, piece of property to-satisfy the lien upon it. The clerk refused, and the relator prayed for a writ of mandate- to- issue out of the district court, directed to- the clerk, ordering1: him to- issue the alias order of sale. The clerk demurred to- the petition for the writ. The demurrer was overruled, and, upon his failure to answer, the district court granted the writ, whereupon the clerk appealed.

The specification of errors relied upon are: First, that the court erred in overruling the defendant’s demurrer to- the petition for the writ; and, second, that the court erred in granting the writ of mandate.

The only question necessary for us to consider is one of practice, to-wi.t, is the writ of mandate the proper remedy? There ha:s not been any appearance on the part of the respondent in- this court. The question before us has not been presented in this forum heretofore, but has been considered and decided by other courts-. We have carefully considered the brief of the appellant, and the authorities which he has cited in support of his contention; and, besides^ we have examined the decisions and opinions contra.

Had the respondent a plain, speedy, and adequate remedy at law, without resorting to a proceeding in mamdmmsf We think that he had. He could have gone into the court which made the-decree, and, by proper motion, prayed for an order in the case upon the clerk of the court, directing him to issue the alias order of sale, without resorting to a proceeding in mandamus. (Fulton v. Hanna, 40 Cal. 278.) The case of Garoulte v. Haley, 104 Cal. 497, 38 Pac. 194, is one in which the court concluded that it w:as the duty of the clerk to- issue an execution when requested by the plaintiff, and granted the application for a writ of mandamus. In this- case, however, the question of whether or not mandamus would lie was not in-any wise raised or discussed; it seeming to have been- tacitly *543admitted by counsel that, if tbe judgment were still in force, mandamus might issue; and the case cannot be considered as-being one in which the court intended to overrule its former holding that mandamus would not lie, as decided in Fulton v. Hanna, supra.

Being of the opinion, that, as above stated, there was a plain, speedy and adequate remedy by motion in the case in the proper court, mandamus was not the proper remedy. Therefore the contention of the appellant must be, and is, sustained. Reversed and remanded.

Reversed and remanded.