The opinion
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Dick, J.
Tlie plaintiff has established his debt against the County of Cumberland by j udgment duly docketed; and as he cannot enforce payment by an execution, he is entitled to a writ oí
mandamus
against the Board of Commissioners to compel them to levy a tax for the satisfaction of said judgment*
Gooch
v. Gregory, 65 N. C. 142 .
There is no provision in the C. C. P., regulating the proceedings in writs of
mcmdamus,
and in such cases “ the practice heretoiore in use, may be adopted so far as may be necessary to prevent a failure of justice.” C. C. P., sec. 392.
The writ oi
mandamus
is an extraordinary remedy, and can only be used by the express order of a Court of superior jurisdiction, and is not governed by the rules prescribed for the prosecution of ordinary legal remedies.
State
v. Jones, 1 Ire. 129. It is not embraced in the rule established in
Tate
v.
Powe,
64 N. C. 644 , which defines the distinction between civil actions and special proceedings.
This high prerogative writ may be obtained from the Superior Court, and the applicant must show by petition or affidavit that he has a specific legal right, and has no adequate legal remedy to enforce it. If the case presented by the applicant shows that the rights of the parties are unadjusted, and there may be facts in dispute, the first process is an alternative
mmdamus,
or a rule to show cause, which is in the nature of an alternative
mandmnus.
In all eases the defendant is entitled to reasonable notice to make his defence; and the manner of service and the day of return are matters within the discretion of the Court. When the rights and liabilities of the parties are ascertained and determined by the judgment of a Court of superior jurisdiction, and the remedy cannot be enforced by an execution, there is no reason why the Court may not grant a peremptory
mandamus
in the first instance, upon a rule to show cause, &c. In our case there are judgments of the Court establishing the rights of the plaintiff — those rights cannot be enforced by execution, the motion for a rule to show cause was
*406
founded upon affidavits. Service of the rule was accepted by the defendants, and only a technical defence was made.
We think his Honor was right in granting a peremptory mandamus, and the judgment is affirmed.
Let this be certified.
Per Curiam. Judgment affirmed.