Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1902-06-18
OLD APPEAL SETTLED.
Clerk Wright Wins His Appeal in the
Case Of Moshner vs.. Wright.

~
Helena, June 9.-In sustaining the
appeal of Edmund Wright. clerk of the
district court of Fergus county. in an
action brought against the latter by
Frank Moshner. the supreme court to-
day held that a mandamus is MT the
proper remedy to compel a clerk of
the district court to issue an alias Or
der of sale.
The history of the ease is that q de-
cree Of foreclosure of liens and an cr-
der Of sale under a decree were made
and issued in a number OF actions
which had been consolidated. The
order Of sale was turned over to the
sheriff, who sol all but one of the
pieces of propo ~. The officer made
his return with Il certificate that all
Of the property had been sold with
the exception of n piece, upon which
there was a lien. Three years late.
Moshner demanded Of the clerk Of the
district court that an alias order OF
sale be issued directing the sheriff
to sell the property upon which there
was a lien. The clerk refused to is
sue the order and Moshner then APP
piled to the district court for a writ
Of mandate compelling him to do so.
The clerk demurred. but this was ov-
erruled, and. upon the clerks failure
to answer, the writ was issued. The
clerk then appealed.
The specification of error relied up
on in taking the appeal were as fol.
lows: That the court erred In over
ruling the defendants demurrer to
the petition for the writ, and that the
court erred in granting the writ Of
mandate.
Associate Justice Milburn sums up
the opinion of the court as follows:
The only question necessary for
us to consider is one OF practice. Is
the writ of mandate the proper rem
edy? There has not been any appear.
ance on the part of the respondent
in this court. The question before us
has not been presented in this form
heretofore. but has been considered
and decided by other courts. We
have carefully considered the brief OF
the appellant and the authorities which
he has cited in support of his conten
ton, and. besides. we have examined
the decisions and opinions contra.
Had the respondent a plain. speed,
and adequate remedy at law, without
resorting to a proceeding in manda
mus? We think that he had. IL,
could have gone into the court which
made the decree and by proper motion
prayed for an order in the case upoI
the clerk of the court directing hin
to issue the alias order of sale. with
out resorting to a proceeding In man
damus. The case of Garoutee agains
Haley is one In which the court con
cluded that II was the duty of tn
clerk to issue an execution when re
quested by the plaintiff and granite
the application for a writ of manda
mus. In this case, however, the que.
ton of whether or not mandarin
would lie was not In any wise raise,
: or discussed. II seeming to have bee
: tacitly admitted by counsel that. II tn
Z judgment were still in force, manda
Z mus might issue. and the al canno
be considered al being n In whic
: the court intended to override its form
er holding that mandamus would nc
lie. as decided In Fulton against Han
ma.
Being OF the opinion that. as abov
stated. there was a plain. speedy an
adequate remedy by motion in tn
I case In the proper court. mandarin
' was not the proper remedy. Their
A fore the contention of the appellar
must be and is sustained. Reverse
q and remanded."