Radermacher v. Sutphen

BUDGE, J. — The cause out of which this application for alternative writ of mandamus arises, Radermacher v. Radermacher, will be found reported in 59 Ida. 716, 87 Pac. (2d) 461,, and may be referred to for a full understanding of the issues presented. In Radermacher v. Radermacher, supra, the decree entered was modified, a petition for rehearing was filed, a rehearing granted and an opinion on rehearing was written in which the following language was used: “The original opinion is therefore modified and we now hold no error prejudicial to appellant’s rights was committed by the court’s ruling and the court need not proceed further in that connection; the only question on remand being the amount of the award for separate maintenance and care, custody and support of the four minor children. Wherefore the trial court should set aside the decree heretofore entered awarding the property to respondent and require solely a proper, adequate and protected monthly allowance for the care, custody and support of herself and the four minor children. ’ ’ Upon the going down of the remittitur a hearing was had, no transcript of which is before us however. At the conclusion of the hearing the trial court made and entered an amended decree and petitioner, appellant in Radermacher v. Radermacher, supra, filed application in this court *531 for a writ of mandate, and an alternative writ issued. To the application and to the alternative writ defendant district judge filed a demurrer “on the ground and for the reason that said application and said writ show on their face that the plaintiff is not entitled to the relief which he seeks herein, and on the further ground and for the further reason that neither said application nor said writ state facts sufficient to constitute a cause of action against this defendant.” The question to be decided is whether a writ of mandate will lie. An analysis of the language used in that portion of the opinion on rehearing directing the trial court to determine “the amount of the award for separate maintenance and care, custody and support of the four minor children .... and require solely a proper, adequate and protected monthly allowance for the care, custody and support of herself and the four minor children” discloses that the taking of testimony other than such as appeared in the original proceeding was required. It was necessary for the trial court to determine what would be a proper and adequate monthly allowance to be paid by petitioner for the support and maintenance of the wife and family. It was also necessary for the court to provide for the protection of said monthly allowance. In view of the fact that the original decree of the trial court awarded the property to the wife, which decree was in force for a time, it was also necessary for the court to determine what, if any, money or property remained in the hands of applicant's wife by reason of the sale and disposition of certain personal property and the collection of rents during the time that the original decree was in force and effect, and further to determine what property, if any, still remained unsold, and what money, if any, was in the hands of applicant’s wife. As a result of such hearing the court made and entered its amended decree. It must be conceded that the court had jurisdiction to hear and determine the matters in controversy. It must also be conceded that the court acted and that its amended decree was made and entered. It is apparent from the language used in the opinion on rehearing in Radermacher v. Radermacher, supra, that the court was not limited to the performance of a purely ministerial act but was empowered *532 to exercise its judgment and legal discretion. Only by the exercise of judgment and legal discretion, which could be exercised only upon proper knowledge of facts, could the court determine the adequacy or amount of the monthly allowance to be decreed and a method whereby such allowance could be protected. If the court committed any error it was error of law not reviewable by mandamus. In St. Michael’s Monastery v. Steele, 30 Ida. 609, 167 Pac. 349, the rule announced by this court is: ‘ ‘ The writ of mandate may be employed to require a court to enter a judgment in the exercise of its jurisdiction, but not to control its discretion or direct its decision. ... A party considering himself aggrieved by the final judgment of a district court has his plain, speedy and adequate remedy at law by appeal to this court .... and where there is such remedy; the writ of mandate is not available. ’ ’ To similar effect see Blackwell Lumber Co. v. Flynn, 27 Ida. 632, 150 Pac. 42. In Board of Commissioners of Shoshone County v. Mayhew, 5 Ida. 572, 51 Pac. 411, in the syllabus by the court it is said: “Mandamus will not lie to reverse the order of an inferior tribunal continuing the hearing of an action or proceeding before it, when such inferior tribunal is exercising a judicial discretion vested in it by law. ’ ’ “The general rule is that it is not the function of mandamus to reverse orders of inferior courts or tribunals acting within their jurisdiction.” (Connolly v. Woods, 13 Ida. 591, 92 Pac. 573.) “Not only is it a general rule that mandamus cannot be used to control judicial discretion, but the view is also very generally entertained that although the writ may be used to correct the errors of courts when in the exercise of mere ministerial functions, it is not appropriate to review the action of a tribunal in any matter involving the examination of evidence and the decision of questions of law and fact since such a duty is not ministerial. In other words, mandamus is not the proper remedy by which to correct or reverse erroneous rulings of inferior tribunals, whether interlocutory or final, that being the office of a writ, of error *533 or an appeal, which mandamus will not be allowed to supplant in accordance with the general principle that where relief may be obtained through the ordinary channels of the law the writ is not an appropriate remedy. ...” (18 R. C. L., see. 230, p. 297.) In State v. District Court, 77 Mont. 594, 251 Pac. 1061, the third and eighth syllabi announce the rule as follows: “Where performance of legal duty involves exercise of judgment or discretion, such judgment or discretion cannot be directed or controlled by mandamus. ’ ’ “Rendition of judgment where required by Supreme Court’s opinion on reversing case calls for the exercise by trial court of judicial power, and not mere ministerial act, as affects right of mandamus.” “It is the general rule that, if certain matters are left open by the appellate court for determination by the lower court, a determination of other matters disposed of by the decree of the appellate court does not make the lower court’s judgment void but erroneous.” (Patterson Land Co. v. Lynn, 51 N. D. 329, 199 N. W. 766.) See, also, State v. Huston, 28 Okl. 718, 116 Pac. 161; State v. Great Northern Utilities Co., 86 Mont. 442, 284 Pac. 772; State v. District Court, 89 Mont. 531, 300 Pac. 235, 82 A. L. R. 1158; Harding v. Garber, 20 Okl. 11, 93 Pac. 539. The demurrer to the writ must be sustained and the writ quashed and it is so ordered. No costs allowed. Givens and Holden, JJ., concur. Morgan, J., by reason of illness, did not participate in the decision.