Strauss v. Costello

150 N.W. 874 | N.D. | 1915

SpaldiNG, Ob. J.

Tbe appellant herein, Fred Bismarck Strauss, is tbe executor' of tbe last will and testament of Fred Strauss, late of Burleigb county, deceased. Tbe respondent is tbe judge of tbe county court in and for Burleigb county. It appears from tbe petition that everything had been done necessary to entitle tbe petitioner to have bis. final report and account as executor allowed and the final decree of distribution made, except that be bad not paid tbe inheritance tax provided for by chap. 185 of tbe Laws of 1913, chap. 10 of Probate Code,. Compiled Laws of 1913.

Application was made for tbe final decree of distribution without, paying such inheritance tax. Such application was denied on the sole-ground that such tax bad not been paid, tbe court finding that all other things necessary and prerequisite to tbe issuance of such final decree bad been done and performed, and its order was entered on tbe 28th day of March, 1914, denying tbe application. Thereupon appellant applied to-tbe district court of Burleigh county, setting forth in bis petition all tbe facts, for tbe issuance of a writ of mandamus commanding tbe judge-of said county court to issue such final decree without tbe payment of the inheritance tax. An alternative writ was issued, and on tbe return day respondent filed an answer and motion to quash, in which be admitted that appellant bad done everything prerequisite and necessary to tbe entry of tbe final decree of distribution, except to pay tbe inheritance tax referred to, and alleging that an order bad been entered in tbe county court on tbe 16th day of December, 1913, determining tbe amount of tbe inheritance tax due from the petitioner and one Cora Minnesota Strauss, sole legatees and devisees under tbe will of the-deceased, as tbe sum of $1,477.32. Upon tbe failure of petitioner to pay tbe same, and upon tbe hearing, tbe district court quashed tbe alternative writ, and denied tbe application, for tbe reason that such inheritance tax bad not been paid. From this order tbe case is here on appeal.

At the .threshold of proceedings in this court we are met with the» objection that mandamus is not tbe proper remedy to bring tbe questions-involved before tbe district court, for the reason, among others, that such writ will, under § 8458, Comp. Laws 1913, only issue where there-is not a plain, speedy, and adequate remedy in the ordinary course of law. We regret that, under tbe provisions of tbe statute and tbe de-eisions of this court, we are required to determine this appeal upon this question of practice, but we have no alternative. Section 8600, Comp. Laws 1913, designates the parties to a proceeding and persons in county •court who may appeal to the district court, and it includes any party to the proceeding, or other person having or claiming a right or interest affected by the order or decree appealed from. Section 8599, Comp. Laws 1913, is as follows: “Any party or other person specified in the next section, who deems himself aggrieved, may appeal as prescribed in this article, from a decree or from any order affecting a substantial right, made by a county court, to the district court of the same county.”

That the order complained of affected a substantial right, and was therefore appealable, is not open to question. The petitioner therefore had a remedy in the ordinary course of law. This remedy by appeal was as speedy and adequate as in any case where an appeal is provided. If any incidental delay occasioned by an appeal would -justify the issuance of the writ of mandamus, then procedure by means of that writ would be warranted in almost any case which might arise, and the statute providing for appeals would become obsolete. The law seems to be well established that the writ of mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy where no adequate legal remedy is provided. The prerequisites necessary to warrant a •court in granting the writ are, first, that it appears that the relator has a clear legal right to the'performance of the particular duty, second, that the law affords no other plain, speedy, and adequate remedy. State ex rel. Wiles v. Albright, 11 N. D. 22, 88 N. W. 729; State ex rel. Atty. Gen. v. District Ct. 13 N. D. 211, 100 N. W. 248; Vilas v. Circuit Ct. 24 S. D. 298, 123 N. W. 841; Farnham v. Colman, 19 S. D. 342, 1 L.R.A.(N.S.) 1135, 117 Am. St. Rep. 944, 103 N. W. 161, 9 Ann. Cas. 314; State ex rel. Ellis v. Atlantic Coast Line R. Co. 53 Fla. 650, 13 L.R.A.(N.S.) 320, 44 So. 213, 12 Ann. Cas. 359; Stegmaier v. Goeringer, 218 Pa. 499, 67 Atl. 782, 11 Ann. Cas. 973; State ex rel. Hunter v. Winterrowd, 174 Ind. 592, 30 L.R.A.(N.S.) 886, 91 N. E. 956, 92 N. E. 650.

In the case cited in 13 N. D., without discussion of the subject, this court held that mandamus is not available where there is another plain, speedy, and adequate remedy in the ordinary course of law, to accomplish the purpose. In Vilas v. Circuit Ct. it was held that mandamus would not lie where tbe plaintiff might have maintained an ordinary action in equity to vacate a judgment, or might have appealed from an order refusing to vacate it.

But it is contended by the appellant that the county court refused to act, and that the writ will lie to compel action. We do not so construe the attitude of the judge of the .county court. He did act. He took jurisdiction of the application for the granting and entry of a decree of final distribution, and acted thereon, holding that the petitioner had not shown facts entitling him to such decree. If the judge was in error, it constituted an erroneous decision on an application, of which he had taken cognizance, and was an error in judgment reviewable on appeal, and was not a refusal to take jurisdiction or to act. Mandamus does not lie to review errors of law occurring in the course of proceedings in art inferior court. Having assumed jurisdiction, the only function the writ could serve, if issued, would be to direct the judge of the county court what character of judgment to enter. This is seldom, if ever, proper. The superior court may command the inferior court to act, but may not direct its action.

We therefore conclude that the judgment of the district court must be affirmed.

When the inferior court has acted upon the application, its action is a judicial determination of a matter properly before it, and the applicant’s remedy is by an appeal (see State ex rel. Atty. Gen. v. District Ct. 13 N. D. 211, 100 N. W. 248, where a review of authorities will be found, also Farnham v. Colman, 19 S. D. 342, 1 L.R.A.(N.S.) 1135, 117 Am. St. Rep. 944, 103 N. W. 161, 9 Ann. Cas. 314) ; and some courts hold that mandamus will not lie when the object is to test the validity of a statute: see State ex rel. Hunter v. Winterrowd, 174 Ind. 592, 30 L.R.A.(N.S.) 886, 91 N. E. 956, 92 N. E. 650, and authorities reviewed therein.

We will, however, add that the purpose of this proceeding was to test the constitutionality of that provision in chap. 185, Laws 1913, being chap. 10 of the Probate Code, Comp. Laws 1913, which imposes an inheritance tax of 5 per cent upon property descending to nephews and nieces, it being claimed that, because a rate of only 3 per cent is attached to inheritances by cousins, the law arbitrarily and unjustly discriminates in favor of those more remotely related to the decedent.- The members of tbe court have given this question sufficient consideration so we can say, without deciding, that at least a majority of the court are of the opinion that the claim of such invalidity cannot be sustained. The order of the District Court is affirmed.