10 Cal. 212 at 214.
Original Opinion of July 1858, Reported at: 10 Cal. 212.
JUDGES: On petition for rehearing, Terry, C. J., delivered the following opinion. Field, J., concurring.
On petition for rehearing, Terry, C. J., delivered the following opinion--Field, J., concurring.
An application is made for a rehearing in this cause--one of the grounds being that the defendant had no opportunity to be heard before the decision of the Court was rendered.
In the record, there is a stipulation, signed by the Attorneys of record for both parties, agreeing that " the cause be submitted for decision to the Supreme Court, on written argument, within ten days from the date, and that if either party fails to file said argument within said time, that the Court may proceed to decide the case immediately on the record and brief of either party that may be then on file."
This stipulation was dated September 15th, 1858, was filed in this Court on the 19th, and the decision of the Court was rendered ten days afterwards.
The nature of the case, it being a proceeding against a public officer, to compel the performance of an official duty, the anxiety of the parties to obtain a speedy decision, and the fact that it was represented to the Court that the public peace would be endangered by delay, were, by the Court, deemed sufficient reasons for taking up the record out of its order on the calendar.
If the appellant has not been fully heard, the fault lies with himself, as he had fourteen days between the date of the stipulation and the decision of the case in which to file a brief, or to apply for an extension of time.
The conclusion of the Court was arrived at after proper deliberation, was unanimous, and the argument of the counsel, in his application for a rehearing, has failed to raise a doubt as to its correctness.
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 when 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 our opinion the plaintiff in this case has no plain, speedy, or adequate remedy in ordinary course of law. It is true, he might sue defendant on his bond for the damages resulting from the non-performance of his duty, but the possession of the property which has been adjudged to him can only be obtained by the present process, and is the only adequate remedy.
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.
Neither a remedy by criminal prosecution, (2 B. & A. 646,) nor by action on the case for neglect of duty, will supersede that by mandamus, since it cannot compel a specific act to be done, and is, therefore, not equally convenient, beneficial, and effectual. (23 Wend. 461.)