State ex rel. Wyckoff v. Merrell

56 N.W. 1082, 38 Neb. 510, 1893 Neb. LEXIS 376

• Court: Nebraska Supreme Court
• Decided: November 28, 1893
• Docket: No. 4666
• Status: Published

Opinion

Norval, J.

This is an original action in the name of the state, on the relation of Albert E. Wyckoff, for a mandamus to-Marion G. Merrell, .as county clerk of Burt county, to. compel him to execute and deliver to relator a warrant upon the county treasurer for the sum of $893.55 for excavating a public ditch, and to E. F. Sisson and others, as the board of county commissioners of said county, to re.quire them to levy a special assessment upon the lands benefited by said improvement to pay the expenses thereof.

This court will not entertain an original application for a mandamus brought by a private citizen for the enforcement of a private right merely, unless some good reason is shown for not making the application to the district court. (State v. Lincoln Gas Co., 38 Neb., 33; State v. School District No. Chase County, 38 Neb., 237.) The several district courts of the state have concurrent jurisdiction' with this court in mandamus cases, and applications like the one before us ordinarily should be made in the first instance to the district court. There may be cases where the application shows that it would be unavailing if made to the proper district court, and that it is necessary that the writ should issue here. When this is made to appear, this court will entertain jurisdiction. This case, however, does not fall within the rule. It is manifest that the ends of justice would be equally as well promoted, and the convenience of the parties would be as well subserved, if the application were made to the district court of Burt county. The proceeding dismissed without prejudice.

Dismissed.