People ex rel. Flagley v. Hubbard

22 Cal. 34

• Court: California Supreme Court
• Decided: July 1, 1863
• Status: Published

Opinions

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring.

On the twentieth day of November, 1862, Flagley commenced an action against A. Gufiy and others, before G. H. Riddell, a Justice of the Peace in the County of Solano, and on application of the defendants the action was removed for trial before the defendant, Hubbard, a Justice of the Peace in the same county. At the time set for trial before the defendant, the defendants in the action again moved for a change of the place of trial, on the ground that they could not have a fair trial before the defendant. The Justice sustained the motion, and entered an order changing the trial to another Justice in the same county. The plaintiff, Flagley, then applied to the County Judge of Solano County for a writ of mandamus, commanding the defendant to vacate the order of removal entered by him, and to proceed to try the action. The application for the writ was afterwards heard by the County Court of Solano County, and the same was refused, and the petition for the writ dismissed. The relator, Flagley, appeals from this order to this Court, and contends that the County Court erred in refusing the writ of mandate as prayed for.

We think there is no error, and that the County Court properly refused to grant the writ. In this case the defendant, as a judicial officer, determined a question properly brought before him, and his action therein cannot be reviewed by means of a writ nf mandate. This Court, in the case of McDougal v. Bell (4 Cal. 177), recognized the rule that “ Courts of law have uniformly refused to allow the rule for a mandamus to issue, when it was to compel a person, inferior officer, Court, or corporation, to act in any particular manner, where such person, officer, Court, or corporation was invested with discretionary power.”

In the present case, it was the duty of the defendant to determine the question whether the defendants, in the case before him,. had a right to a removal of the cause, and having decided it, his decision is subject to review, upon appeal from the final judgment, like any other order or judgment in the case, and in this form the relator has a full and ample remedy. Had the Justice refused to decide the matter, or make any order upon the motion for removal, and refused to proceed with the case, then he might have been compelled by mandamus to act and determine the questions submitted to him.

The judgment is affirmed.