
    STATE ex rel. KRONSCHNABEL v. TAYLOR, Judge.
    (138 N. W. 372.)
    1. Special Proceeding — Jury Trial — Removal of Dependent Children —Continuance—Jurisdiction.
    A proceeding under Pol. Code, Sections 3205-3214, for removal of dependent or neglected children to homes for dependent children, is a special proceeding governed by provisions of that chapter, and not an action under Code Civ. Proc., Sec. 244, authorizing court to call a jury to try certain issues triable to the court; and held, the court in such a proceeding has no authority to call a jury, and a continuance to allow a jury trial is without legal authority.
    2. Mandamus — Excess of Judicial Authority — Remedy by Appeal.
    Where the court, in proceedings under Secs. 3205-3214, Pol. Code, for removal of dependent or neglected children to home for dependent children, without legal authority continued' proceedings to allow a jury trial, the petitioner, entitled to a speedy determination of the proceedings for protection of state and the child, had no adequate remedy by appeal, and mandamus lies to require the court to proceed and try the issues without a jury.
    (Opinion filed November 12, 1912.)
    Mandamus -by the State, on the relation of Frank C. Kron-schnabel, against Alva E. Taylor, as Judge of the Circuit Court in and for the Ninth Judicial Circuit, requiring defendant to proceed and try the issues of fact raised in a special proceeding.
    Writ issued.
    
      Morris & Moriarty, and Crawford & Warren, for Relator.
    
      Gardner & Churchill, C. A. Kelley and Wm. Issenhuth, for Defendant.
    Mandamus should not issue in this case for the reason that it does not appear that the relator is clearly entitled to the relief sought, nor that a plain duty of the defendant has been violated to the substantial injury of the relator or the public nor that injustice of irreparable wrong will result from the denial of the writ: Bailey v. Lawrence County, 2 S. D. 533; State ex rel. Dakota Central Telephone Company v. City, of Huron, "23 S. D. 153, 120 N. W. 1008; State ex -rel.- Davis v. Willis, (N. D.) 124.-N. W. 706; State ex rel. City of Minot v. Willis, (N. D.) 118 N. W. 820; Territory ex rel. Wallace v. Woodbury, (N. D.) 44 N. W. 1070; Braun v. Campbell, (Wis.) 119 Ñ. W. 112.
    The child, Celeste Issenhuth, whose welfare is the chief concern of the court in this case, is in safe and suitable 'custody and no harm or injury can result to anyone from the order of the defendant herein continuing the case of State ex rel. Kronschnabel to the January, 1913, term of court.
    The defendant assumed jurisdiction of the matters presented before him below, considered the law and the facts presented before him and rendered a decision thereon. Mandamus will not lie to review that decision or to control the discretion vested in the defendant. State ex rel. Koontz v. Brown, (S. D.) 125 N. W. 294; Vilas v. Circuit Ct., (S. D.) 123 N. W. 841; Stephens v. Jones, (S. D.) 123 N. W. 705; Farnham v. Colman, 19 S. D. 342; Sawyer v. Mayhew, 10 S. D. 18; Stockwell vv Crawford, (N. D.) 130 N. W. 225; Terr, ex rel. Gramburg v. Nolin, (Dak). 20 N. W. 4307 State v. Dist. Ct., (N. D.) 100 Ñ. W. 248; Aldrich v. Superior Ct., (Cal.) 66 Pac. 846; State v. Second Judicial Dist. Circuit, (Cal.) 66 Pac. 352; Ex parte Brown, 116 U. S. 401, 29 Law Ed. 676; Spelling, “Injunction and Extraordinary Remedies,” Sec. 1384 to 1389.
    In the case of State ex rel. Kronschnabel v. Issenhuth, out of which this proceeding grows, the defendant in this case assumed jurisdiction and exercised his discretion to prevent injury or harm and at the same time -to protect the rights of all •parties, the defendant John Issenhuth as well as the petitioner. He issued his citation immediately upon the filing of a petition requiring the defendant to appear in the minimum- time allowed by statute; he took immediate custody of the child, Celeste Issen-hut-h, and is still keeping her in a home and school, the fitness and character of which is unchallenged by relator herein, and at no expense to anyone, save John Issenhuth; he considered and overruled a demurrer to the petition, -requiring the pleadings to be made more definite and certain by an amendment and denied the motion of the defendant John Issenhuth, for time in which td answer, requiring him to answer forthwith; in the exercise of a sound discretion and in view of the grave and revolting nature of the charges made in the .petition, he called to his aid a jury to make advisory findings upon the issues of fact involved -and finally upon showing that the defendant John Issenhuth was unable after the exercise of due diligence to secure attendance of material ¡witnesss in time for trial at the October, 1912, term of the circuit court in Beadle county, continued the case to the second day of the January, 19.13, term. Of these rulings and orders some were in favor of petitioner and as to these he cannot complain. Some may even be erroneous, but as to these, relator has a plain and adequate remedy by appeal and mandamus will not lie to take the place of such appeal. There is no question but that all were made in good faith in exercise of a discretionary authority vested in the defendant .and there is no showing that wrong or injury in the slightest-degree has followed or will "follow from the'order of the defendant continuing said case to the January, 1913, term.
    The duties of the defendant in passing upon questions submitted to him were judicial and not subject to review by mandamus. Stephens v. Jones, (S. D.) 123 N. W. 705; Terr. v. Now-lin, (Dak.) 20 N. W. 43d; Vilas v. Circuit Ct.,. (S. D.) 123 N. W. 841.
   WHITING, J.

This is an original proceeding seeking the mandate of this court requiring the defendant, as judge of the circuit court in an for Beadle county, to proceed and try the issues of fact raised in a special proceeding brought in such court. The facts are undisputed. The present relator filed in the said circuit court on August 5, 1912, a petition under the provisions of chapter 28, Political Code.- In said petition it was alleged that one John Issenhuth had in 'his care, as his adopted daughter, one Celeste Issenhuth, a child of some eleven years of age, and that he had been guilty of certain wrongful conduct such as to render him wholly unfit to have the care and custody of isuch child. The petitioner asked that the custody of such child be taken from issenhuth, and given to a society incorporated under the laws of -this state for the purpose of securing homes for children. An order was issued requiring said Issenhuth to show cause why 'such petition should not be granted. Upon the return day of such order, August io, 1912, Issenhutl jwas required to answer. Hfe then demanded a jury trial of *e issues of fact raised by -the petition and answer. This ^ . and was resisted, but the said court, the defendant herein ¿siding, made an order granting ,a jury trial and continued the cause to the October, 1912, term of said court, “for the purpose of submitting certain issues of fact to a jury for trial.” During said October term, Issenhuth asked for a continuance of said proceeding for a time sufficient ■to allow him to procure the presence of certain witnesses. All jury cases for said term had been disposed of and the court continued the hearing of said proceeding to the January, 1913, term of said court. No claim is made that a continuance of the length of either continuance granted was necessary in order to give time sufficient to procure witnesses. It is apparent from the return filed herein by defendant that no continuance for a period greater than two or three days was necessary in order to give said Issen-huth sufficient time within which to procure his witnesses. It is therefore clear that both the continuances were granted' by the court in order that the defendant as judge of such court might have the assistance of a jury- in the trial of the issues of fact. The child -has since the commencement of proceedings in the circuit court been in the custody of the sheriff, who pursuant to the directions of the said court, has placed such child under proper care.

The defendant herein contends : (x) That mandamus should not issue in this case, for the reason that it does not appear that the relator is clearly entitled to the relief sought, nor that a plain duty of the defendant has been violated to the substantial injury of the relator or the public, nor that injustice or irreparable wrong will result from the denial of the writ; (2) that, inasmuch as the defendant assumed jurisdiction of the matters presented before him in the trial court and considered the law and facts and rendered a decision thereon, mandamus will not lie to review such decision or to control the discretion vested in defendant; (3) that the duties of the -defendant in passing upon the questions submitted to him were judicial, and not subject to review by mandamus.

To our minds the right of relator to the relief sought in this court depends solely upon whether or not defendant, as the judge ¡of, ítlae trial. court, had. apy authority, whatsoever..to- grant .a jury trial. No claim.is .made in -this..court; .-that, he had any such authority and certainly the statutes-, of this state do not gr.ant any. Section. 244 of the; Code ,of Civil Procedure authorizes a court to, call a jury to assist .in the;-trial.of..certain isspes. triable .to.jthq court. .This section.ig,a part of chapter .12. -of; SMqfi Code-, which chapter relates, to trials -.and .judgments -in civil, actions only. Certainly, no .one would contend that. .the. proceeding in, the circuit court was a- civil action. . It was purely a- special proceeding finding its authority solely in. thg statutes, and,-like all other special proceedings, its-conduct is;,governed by the .express provisions, of.the statutes.. .There being.no provision authorizing- the -calling of a jury, the defendant was wholly without authority, to .call one.

A reading of the chapter under-.which the -proceedings in .the circuit court were brought, taken into consideration with, the nature of the proceedings, shows cle.arly that.it was the - purpose of the law -that there be speedy determination of the. issues - raised. It is important, not only .to the petitioner, to- Issenhuth, and- to society that there be a-prompt disposition of a matter of -this nature, but it is especially important to the child, and certainly it is an inherent right vested in the child — a right no one should deprive it of — to have its status speedily determined. . It is not a case where a trial court-has abused a discretion - vested in it, but rather one where it has taken an action beyond its authorit}'-. As was said in the case of State v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33: “It is not entirely accurate to say that no act involving discretion cati be controlled or corrected by mandamus. Where it clearly appears that discretion has been not merely abused but not exercised at all, or that the action taken by the .inferior court is -without semblance of legal cause and no other adequate remedy exists, mandamus will lie to compel the specific action which should have, been taken. * * * Such cases are, however, more apparent than real exceptions to the rule, because, when only one course is open to the court upon the facts presented, the pursuance of that course becomes the plain and absolute duty of the court, and a refusal becomes, in effect, a failure to perform a duty within its jurisdiction.” The trial court did not, and we are certain it would not, have granted a continuance . for the period of either continuance, and based its order upon the need of time to procure the.présence of! witnesses‘Such an order, under the facts’ shown, would’have béeñ! ¿ mo’st séfioús abuse of judicial discretion. A continuance to-'-■al'ldw ’of a jury trial was-entirely without ■ authority,' and the“clear■ditty of defendant was to refuse'both-'continuances.' '■ ■ ' " : ’■ - - 1

Defendant urges that the relator'had an adequate remedy by appeal. "While the relator might, through’appeal, get a reversal of the trial court’s 'ordér granting a :jury trial,' while such' appeal was pending, what would "become of "the right of relatór and others to a’ speedy trial of the issues of fact? ' While sufch an appeal might- correct the error of the court in submitting the. issues to a jury,'it "would be an entirely inadequate rémedy, as i’t could'not restore to'relator, to society, or' to the child that right to'a speedy trial to which each is entitled under" the statue. As was said by the court in the Case of State v. Johnson, supra: "“The general law undoubtedly is that mandamus will not lie where there is a remedy by appeal or writ of error. * * * But the remedy by appeal must be substantially adequate in order to prevent relief by mandamus. If it appears that ah appeal will not be an adequate remedy, mandamus may still issue in the -discretion of the court." In State etc., v. Superior Court, etc., 40 Wash. 443, 82 Pac. 875, 2 L. R. A. (N. S.) 568, 111 Am. St. Rep. 915, 5 Ann. Cas. 775. wherein there -was an application for a writ of mandamus requiring a trial court to proceed to the trial of a cause wherein, as- alleged- by relator, -the- trial court had wrongfully granted a change"of venue, the court said: “At the threshold of the proceeding, the respondent raises the objection that the relator has an adequate remedy by . appeal, and that mandamus will not lie. If the contention of the relator is correct, viz., that the superior court of Spokane county had .exclusive jurisdiction- -to-.hear, and determine the garnishment proceedings without power or' discretion to order change of venue, mandamus ’is -the-proper remedy. The'mere fact that the superior court of Kittitas Cbttiity,' to-" which the proceedings have .been transí erred, may ' erroneously ’ assume jurisdiction and that the proceedings may, in that way, eventualy reach- this court .by appeal, is not in our opinion---an adequate remedy.”

Answering the several contentions of the defendant, we hold: While, the granting’of a jury trial and of the continuances based thereon were acts judicial in nature, they were beyond the authority vested in the defendant, and therefore matters in which he had no discretionary powers. By granting of the writ asked for, we are in no manner controlling any discretion vested in defendant as trial judge, but rather preventing him from doing that which he has no authority to do. An injustice and irreparable wrong would be done relator if we denied the writ, because a plain duty of defendant has been violated to the substantial injury of relator, the public, and Celeste Issenhuth. For -the above reasons, it is clear that the rel-ator is entitled to the relief sought. Therefore it is ordered that a writ issue requiring the defendant as judge of the circuit court to proceed, with all due diligence and without the assistance of a jury, to- the trial of the issues of fact in the porceeding wherein, the present relator is petitioner and John Issenhuth, .and Celeste Issenhuth are defendants.  