State Ex Rel. Torreyson v. James

38 P. 668, 22 Nev. 263

• Court: Nevada Supreme Court
• Decided: January 5, 1895
• Docket: No. 1417.
• Status: Published

Opinion

By the Court,

Belknap, J.:

This is an application for an alternative writ of mandamus requiring the board of county commissioners of Storey county (respondents herein) to allow the costs of the clerk of this court incurred upon appeal in the case of State v. Trolson, 21 Nev¡ 419. Respondents demurred to the petition, upon the ground that the court had no jurisdiction of the subject matter. The writ of mandamus should be resorted to only when the usual and ordinary remedies fail to afford adequate relief, and without it there would be a failure of justice. If there is an adequate remedy at law by which relief maj^ be attained it should be taken. It is clear that there is such remedy.

The principle is stated in Shelby v. Hoffman, 7 Ohio St. 450, as follows: “The writ of mandamus, at common law, was a prerogative writ, introduced to prevent discord from a failure of justice, and to be used on occasions where the law had established no specific remedy. It is, however, a general rule at common law that the writ of mandamus does not lie unless the party applying has no other adequate remedy.” See, also, High, Extr. Rem., sec. 15, and cases there cited.

Mandamus denied.