Opinion
Opinion filed April 8, 1929.
H. O. Brown for Realtors;
W. D. Bell, for Respondent.
An alternative writ of mandamus was issued by this Court commanding the respondent to deliver up office records it appearing that realtor Eddy had been commissioned as respondent's successor. A return in effect averred that the commission to relator Eddy was not founded on a certificate of election, and that the commission had been recalled by the Governor. This return was stricken and an application for a rehearing was filed. Pending its consideration the relator moved for a peremptory writ and the respondent presented an amended return showing that respondent has been commissioned by the Governor to the same office claimed by the relator Eddy. As the relator Eddy and the respondent each has a commission from the Governor to fill the same office for the same period of time, mandamus cannot be invoked to control the possession of the office records, since a clear right in the relator Eddy to have the records or a clear duty of the respondent Bell to deliver the records to Eddy, do not appear, and conflicting claims of title to the office cannot be adjudicated in mandamus. In this situation the alternative writ of mandamus should be and it is hereby dismissed.
WHITFIELD, P. J., AND STRUM AND BUFORD, J. J., concur.
TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.