In re Schmidt for a Writ of Mandamus

OPINION OF THE COURT BY FREAR. C.J. The petitioner alleges in substance tbat he was a juror at tbe February Term of tbe Circuit Court of tbe First Circuit over wbicb tbe respondent presided, tbat be appeared as sucb juror before the court on eleven different days, on two of which be joined in verdicts, but tbat on tbe last of said days, upon the-jury stating tbat they could not agree upon a verdict, tbe Judge asked bow they stood, and, when informed ten to two, further asked who tbe two were, and, when informed the present petitioner and one other by name, harshly and cruelly reprimanded •these two, excused them from further jury duty and ordered tbat they forfeit their per diem fees already earned during tbe term. It is .further alleged tbat a statement of tbe fees due petitioner was made up1 by the clerk of the court, countersigned by tbe Judge, signed by the petitioner and audited by tbe auditor, and tbat tbe amount thereof, twenty-four dollars, was •collected from tbe Treasurer for and on account of tbe petitioner, tbat the clerk now bolds tbe same and although requested •refuses to pay tbe same to tbe petitioner because of said order. Tbe petitioner prays for a writ of mandamus directing the Judge to vacate tbe order excusing him, tbe petitioner, from further jury duty and forfeiting bis fees. An alternative writ issued. Tbe respondent demurs on a number of grounds, only one or two of wbicb need be considered. Tbe order excusing tbe petitioner from further duty was within tbe discretion of tbe court and clearly cannot be reversed by mandamus. In People v. Murray, 85 Cal. 350, tbe court said: “Ordinarily, a court would not be justified in discharging a .jury because it bad returned a verdict wbicb did not meet with tbe approval of tbe court. But the verdict might be sucb as to •convince tbe court tbat tbe jury bad purposely and wilfully disregarded tbe evidence and returned a verdict in violation of [334] their sworn duty: Under such circumstances1 the court would not only he justified in discharging the jurors, but it would be its duty to do so.” The question whether In this case the Judge was justified by the facts in exercising his discretion in the way he did cannot be inquired into in these proceedings. Andreios, Peters & Andrade for petitioner. A. B. Hartwell for respondent. As to the order forfeiting fees for services previously rendered, the petitioner has other adequate remedies. Por instance, on the facts alleged he could recover the fees from the clerk in an action for money had and received. The Judge’s order of forfeiture, being void, would be no defense to the clerk in such an action. Again, no demand was made on the Judge to reverse the order of forfeiture or to direct the clerk to pay over the money and no adequate excuse is given for not having made such a demand. On the contrary the allegation that the Judge after ordering a forfeiture countersigned the statement as to the petitioner’s fees, would seem to indicate that he had already come to the conclusion on further reflection that his previous order was erroneous. ¥e presume that the Judge would on application direct the clerk tó 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.