Westbrook v. Wicks

Day, J. — The petition alleges in substance, that in the .district court of Hamilton county, Henrietta Westbrook procured a decree of divorce from her husband, Lyman West-brook, and was awarded in fee simple certain real estate, subject to the payment to Lyman Westbrook, of $150, one-half in one year, and one-half in two years, which was declared a lien on her real estate. That the plaintiff1, J. Skinner, defended Lyman Westbrook, in the divorce proceeding, and that he notified Harriet that he -•claimed a lien of $50, for attorney’s fees, on the sums she was directed to pay her husband. That plaintiff requested Wicks, who is clerk of the Hamilton district court, to issue execution .against Harriet Westbrook, for the enforcement of his lien, and that the clerk refused to issue such execution, stating that he had been ordered by the district judge that plaintiff was not -entitled to such execution. The giving of this advice to the [383] clerk is alleged as the reason for applying in this court for the writ of mandamus. We have no jurisdiction in the premises. This court is one of appellate jurisdiction. Rev., § 2631; Const., art. 5, § 4. A writ of mandamus issues from the district court. Rev., § 3761. It may issue from the supreme court to a district court, if necessary, and in any other case where it is found necessary to enable it to exercise its legitimate power Rev., § 3764. This is not such a case. The express grant of a power in enumerated cases implies a negation of it in those not mentioned. Expressio unius est exelusio alteri/us. The writ is Refused.,