Logansport, Crawfordsville & South-Western Railroad v. Groniger

51 Ind. 383

• Court: Indiana Supreme Court
• Decided: November 15, 1875
• Status: Published

Opinion

Biddle, C. J.

Motion for a writ of mandate by the appellant against the appellee, who was a justice of the peace, to compel him to issue a summons against David C. Plank, on a cause of action filed before him in favor of the appellant.

• The affidavit on which the motion was grounded was demurred to by the appellee, for want of sufficient facts alleged, and the demurrer sustained. Judgment for appellee on demurrer, and appeal by'appellant.

The affidavit does not show that the justice was not “ related by blood or marriage to either party.” 2 G. & H. 579, sec. 10.

We think, for this omission, the affidavit was insufficient.

The same section (10, supra) which gives jurisdiction to justices of the peace in civil cases denies it when the justice is related by blood or marriage to either party. The affidavit, in cases of this kind, should have negatived this relation. One statutory writ of mandate takes the place of the common laiv writ of mandamus, which was a prerogative writ, and should not be granted except on a clear case made and when there is no other adequate remedy. Gondit v. The Board, etc., 25 Ind. 422; Irwin v. Lee, 34 Ind. 319; Shelby v. Hoffman, 7 Ohio St. 450.

The demurrer to the affidavit was properly sustained.

The judgment is affirmed, with costs.