The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-04-11
DECISION
RENDERED.
Writ of Mandamus
Denied Juryman
Schmidt.
THE DEMURRER
WAS SUSTAINED
Supreme Court Rules That AppIi-
cant Should Have Made Motion
Before Circuit Judge.

The Supreme Court yesterday render
ed decision sustaining the demurrer
and dismissing the writ in the matter
of the application of w. T. Schmidt for
a writ of mandamus against A. S
Humphreys, First Judge of the First
Circuit Court.
While the higher court sustains the
demurrer of Judge Humphreys, it at
the same time plainly states that his
order as to the forfeiture of the jury
men who applied for the writ, is
erroneous and void, and that it would
not hinder the applicant from recover
ing his money in an action for recovery
against the clerk. The applicant, how
ever, is criticised for resorting to the
application for a writ of mandamus
when he had other remedies. The rul-
ling is as follows:
'Mandamus, as rule does not lie
to compel a reversal of an order of an
inferior court where such order is with
in the discretion of the court Gas where
a juror has been excused from further
duty and where there is another ade-
quate remedy Gas where the court has
ordered a forfeiture of the jurors fees
and the clerk has afterwards, with the
approval of the Court, drawn them from
| the Treasury for the use of the petition
err, or where demand has not previously
been made upon the court or judge"
The opinion is by Chief Justice Frear,
and is as follows:
| The petitioner alleges in substance that
he was juror at the February term oe
| the Circuit Court of the First Circuit,
over which the respondent presided; that
he appeared as such juror before the
court on eleven different days, on two
| of which he Joined in verdicts, but that
on the last of said days, upon the jury
stating that they could not agree upon
a verdict, the Judge asked how they
stood and, when informed ten to two,
! further asked who the two We're, and,
when informed, the present petitioner
and one other by name harshly and
cruelty reprimanded these two, excused
them from further duty, and ordered
that they forfeit their per diem fees al
ready earned during the term. It is fur
| Their alleged that a statement of the fees
due petitioner was made up by the
clerk of the court, countersigned by the
Judge, signed by the petitioner and aud
| tied by the Auditor, and thai the amount
| thereof, S24, was collected from the
Treasurer for and on account of the pc
I.titioner; that the clerk now holds the
same, and although requested, refuses
of said order. The petitioner prays for
writ of mandamus directing the Judge
to Vacate the order eXcusing him, the
petitioner, from further jury duty, and
FORGETTING his fees. An alternative writ
issued.
The respondent demurs on a number of
grounds, only one or two of which need
be considered.
The order excusing the petitioner from
further duty was wiJnm the discretion
of the court and clearly cannot be re-
versed by mandamus In People VS.. Muir
ray, 50 Cal. $50, the Court said: 'fOrdi-
narily, a court would not be justified in
discharging jury because it had return
ed verdict which did not meet with
the approval of the Court But the Ver-
dict might be such as to convince the
Court that the jury had purposely and
wilfully disregarded the evidence and
returned verdict in violation of their
sworn duty. Under such circumstances
the Court would not only be justified in
discharging the jurors, but it would be
it's duty to do So
The question whether in this case the
Judge was justified by the facts in exer-
cising his discretion in the way he did,
cannot be inquired into in these proceed
iEgs.
As to the order FORGETTING fees for ser
vice previously rendered, the petition has
OlHtT duequdlS fOF instance,
on the facts alleged he could recover the
fees from the clerk in an action for mon
ey had and received. The Judges order
for forfeiture, being void, would be no
defense to the clerk in such action.
Again, no demand was made on the
Judge to reverse the order Of forfeit
ure or to direct the clerk to pay over
the money, and no adequate excuse is
given for not having made such a de-
mand. On the contrary, the allegation
that the Judge, after ordering a forfeit
ure, countersigned the statement as to
the petitioners fees, would seem to in
dictate that he had already come to the
conclusion, on further reflection, that his
previous order was erroneous. We pre-
sumo that the Judge would, on applica-
| ton, direct the clerk to pay over the
money.
The writ is of an extraordinary nature
and should not issue, as a rule, where
there exists another adequate remedy,
or where demand has not previously been
made upon the party against whom the
writ is sought, and no sufficient reason
appears why these rules should not be
applied to the present case.
| The demurrer Is sustained and the writ
dismissed with costs.