Mandamus is not the proper remedy; the relator has other specific and adequate remedy. (Moses on Mandamus, p. 61, and citations therein; Draper v. Noteware, 7 Cal. 276.)
Nor evenby mandamus will the clerk be compelled to issue execution on a judgment for the recovery of money damages only. (Goodwin v. Glazer, 10 Cal. 333; Kewen v. Johnson, 11 Cal. 260.)
People v. Loucks, (28 Cal. 68) was for the recovery of specific real property; and it is there held, that the party entitled to the writ of restitution cannot be adequately compensated by resorting to the Clerk's bond for damages, etc.; and the case of Fremont v. Crippen (10 Cal. 215) is cited by this Court as a parallel case therein.
The appeal from the order denying the motion for a new trial is now pending and undetermined, and the undertaking given stays the execution of the judgment.
JUDGES: Sprague, J., delivered the opinion of the Court, Crockett, J., and Temple, J., concurring. Rhodes, C. J., concurring. Mr. Justice Wallace, being disqualified, did not sit in this case.
OPINION
SPRAGUE, Judge
At the time petitioner demanded execution upon his judgment against Cox and Willcutt of respondent as the Clerk of the Court in which judgment was rendered, there was an appeal pending in this Court from an order denying defendant's motion for a new trial of the cause, in which petitioner's judgment was obtained, on which appeal appellants had given a full bond to stay execution, as required by Section 349 of the Practice Act. I have no doubt this appeal operated a stay of an execution upon the judgment pending such appeal, and the circumstance that a prior appeal from the judgment had been dismissed by this Court for want of prosecution before an appeal from the order denying defendant's motion for a new trial therein had been perfected, cannot change the effect of an appeal from the order.
Although an appeal from an order denying a motion for a new trial is in a different and distinct line of proceeding from a direct appeal from a judgment, still a reversal on appeal from the order denying a motion for a new trial and remanding the cause for re-trial, as effectually vacates the judgment as a reversal of the judgment upon a direct appeal therefrom; and when a full bond is given on appeal from such order, as provided in Section 349 of the Practice Act, I can see no reason why execution is not as effectually stayed upon the judgment pending such appeal as it would have been pending a direct appeal from the judgment, with a like bond or undertaking. The fact that a direct appeal from the judgment had been dismissed, certainly does not place the appellant in any different or more unfavorable position in respect to his appeal from the order than he would have occupied had no direct appeal from the judgment ever been taken within the time prescribed by the statute.
If these views be correct, the respondent very properly declined to issue the execution demanded by the petitioner, and no mandate should issue to compel a compliance with such demand.
Furthermore, the judgment, upon which petitioner demanded his execution, was a simple money judgment, and, if entitled to his execution, and respondent refused, upon proper demand, to issue the same, he had " a plain, speedy and adequate remedy in the ordinary course of law," by motion in the proper Court, or by action against the Clerk; and this alone, as a general rule, is a sufficient answer to his application for a writ of mandamus. (Goodwin v. Glazer, 10 Cal. 333.)
The writ must, therefore, be denied.
So ordered.
CONCUR
RHODES
By Rhodes, C. J.: I concur in the judgment.