People ex rel. Dota v. McKay

1 How. N.P. 103

• Court: Circuit Court of the 31st Circuit of Michigan
• Decided: December 15, 1876
• Status: Published

Opinion

Harris, J.:

The first point raised is, that this court has no authority to issue the writ asked for, and McBride vs. The Common Council of Grand Rapids, 32 Mich., 360, is relied on to support this position. But this is an authority quite the other way. The' court says, on page 364, “It” (the writ of mandamus) “is a very proper writ to enable the Circuit Courts to give effect to their appellate and supervisory authority in some cases, and is often made use of for such purposes.” And in arguing the case and reviewing the authorities, the court says, on page 367, “These considerations lead me to the conclusion that the constitution does not give to the circuit courts jurisdiction of the enumerated writs, except for the purposes of jurisdiction which in general terms is conferred.”

And the Constitution, Art. 6, Section '8, gives to the courts supervisory authority over inferior jurisdictions— not over common councils or State or county officers, for they are in no legal sense inferior courts or tribunals.

I have no question, then, but that upon a proper showing and in a proper case this court may issue a writ of mandamus to a justice of the peace, and the only question is, do the circumstances of this case call for the interposition of this court by this writ.

The cause having been adjourned from July 25 to August 15, the justice in the meantime could do nothing in the case. His action on the 31st of July was illegal and utterly void. Section 5380 furnished no justification for the action taken. A clear legal duty rested upon the justice to take some action or render some judgment on the adjourned day. This legal duty the justice, on request, refused to perform, and mandamus is the proper remedy to compel him to discharge his duty. 26 Mich., 22. Otherwise this is a denial of justice.

The case stood regularly for hearing on August 15, and on that day, if the plaintiff failed to appear, it would seem as though the only thing the justice could do was to render a judgment of nonsuit and for costs. — 29 Mich., 199.

But it is not for this court to say what judgment he shall enter, or what action he shall take.

(December, 1876.) C. R. Brown and T. J. McSwceney for Relator. E. R. Stevenson and F. Whipple for Respondent.

Let a writ of mandamus issue requiring the justice to render such a judgment, as of the date of August 15, or take such other' action, as the facts then before him required.

Everything tends to show that the justice acted in entire good faith, and no award of costs can be made against him.