Bailey

This is an application for a writ of mandate to require that the respondent deliver to the petitioner the personal property described in the petition. An alternative writ was issued. Respondent is now before the court for the purpose of showing cause why a peremptory writ should not be granted. Such writ should not issue unless it appearthat respondent should be compelled to perform the demanded act as an act which the law specially enjoins upon respondent ‘ ‘ as a duty resulting from an office, trust or station, ’ ’ or unless the writ should issue to compel the admission of petitioner “to the use and enjoyment or a right or office to which he is entitled, and from v/hich he is unlawfully precluded by such . . . person.” (Code Civ. Proc., sec. 1085.)

This is a proceeding incidental to an action for the possession of the described property. An appeal by the defendant from a judgment in that action is now pending in the supreme court. At the time of commencement of the action in June, 1913, an affidavit and undertaking in claim and delivery were made, which, on July 18, 1913, were delivered by the plaintiff to the sheriff, together with an order indorsed by the plaintiff’s attorney…