State ex rel. Simpson v. Votaw , 18 Mont. 279 ( 1896 )

PembertoN, C. J.

Appellant here contends that relatrix had a plain, speedy and adequate remedy at law; that she had a right of action against the justice; and that she should at least have gone before the justice, and moved to vacate the execution, before bringing this suit. For these reasons counsel for appellant contends that the district court erred in issuing the writ of certiorari.

It may be true that relatrix could have permitted the constable to sell her property under the alias execution, and then sued him, the justice, and all other persons concerned in the taking and selling of her property thereunder in trespass for damages. But this remedy, we think, would not have been speedy or adequate. We think the relatrix, being a stranger to the judgment and execution under consideration, was not required to go into court to ask that the unauthorized alias execution be set aside. She had the right to treat the issuing thereof and the seizure of her property thereunder as unauthorized, and take such proceedings as were necessary to determine whether the justice had jurisdiction to issue the same.

Appellant’s counsel say the issuing of the alias execution was a ministerial act, and therefore cannot be investigated in this proceeding. When the justice decided — evidently on the motion of some one — that he had the power or jurisdiction to issue the alias execution with the name of relatrix inserted therein as an execution defendant, he acted judicially. His acting as his own clerk, and issuing the execution, does not relieve the act of its judicial character.

"We are clearly of the opinion that the justice had no jurisdiction to make relatrix a party to the suit and execution under discussion. We think the writ of certiorw'i was properly issued by the district court. The judgment appealed from is affirmed.

Affirmed.

HtjNt, J., concurs. De Witt, J., not sitting.