Mitchell v. Hay

Warner, C. J.

The only question involved in this case is, whether the Court below did right in directing the City Marshal to deliver the property levied on,' to Mrs. Hay, the claimant, by mandamus. She had the right to claim this property , as the wife of her insolvent husband, according to the 2014 section of the Code, and having claimed it and given bond and security for its forthcoming, it was the duty of the -City Marshal, in the language of the Code, to leave the property in the possession of the claimant. Section 3680. It was insisted on the argument in this Court (though the question does not appear to have been made and decided in the Court below,) that mandamus was not the proper remedy, inasmuch as the officer might be sued as a tresspasser. By 3142d section of the Code it is declared, that “ All official duties should be faithfully fulfilled, and whenever, from any cause, a defect of legal justice would ensue from a failure, or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.” The 2019 section of the Code declares that any officer hnouñngly, shall levy on, or sell any property exempt under the insolvent law, where a schedule thereof has been returned as required, he will be guilty of trespass, and suit may be brought therefor. But the complaint against the marshal here, is not for levying on, or selling the prop *583 erty, but the complaint is, that he will not fulfill and perform his official duty as required by law, by leaving the property claimed in the possession of the claimant, who has given bond and security for its forthcoming. What specific legal remedy this woman had to compel the City Marshal to leave the property levied on in her possession, so indispensably necessary for her daily use, and that of her children, is not very apparent to us. It was his official duty to have left it in her possession, and in our judgment, there was no error in the Court below in requiring him to perform that official duty by mandamus, under the statement of the facts, as presented in the record. Let the judgment of the Court below be affirmed.