These are apparently three actions, one from the Civil Actions Branch, one from the Landlord & Tenant Branch and one from the Probate Division, that were consolidated for trial. 1 After the trial court ruled that appellant Emmett Stebbins was not entitled to a jury trial, he filed a petition for a writ of mandamus from this court. While the petition was pending, appellant did not appear on the date in which he knew the bench trial had been set. At that time, the trial court dismissed the case with prejudice for failure to prosecute. Appellant now appeals the dismissal, contending that the trial court did not have jurisdiction to proceed while his petition for mandamus was pending in this court. Because we hold that the trial court had power to act as it did, and did not abuse its discretion, we affirm.
I.
In their civil complaint, appellant and Clarkie Stebbins 2 named as defendants ap-pellees Charles 3 and Rita Stebbins, their grandson William P. Lee and an attorney, Lawrence E. Smith. The complaint asserts that in 1960, as a result of a “domestic dispute,” appellant and Clarkie Stebbins deeded their property at 1612 Kearny Street, Northeast to Charles Stebbins “for management purposes only.” The complaint alleged that the deed was void because Charles Stebbins had used an attorney as a notary on the acknowledgment, that no consideration was paid, and that it had not been signed before the purported witnesses. The plaintiffs further contended that Rita Stebbins had improperly procured a power of attorney from Charles Stebbins and used it to convey the property to William Lee. The plaintiffs demanded as relief a decree for the conveyance of legal title to them and a judgment for punitive damages.
On the day set for trial, the court announced that there was to be a non-jury trial. Appellant objected arguing that the complaint had demanded a jury trial. In response, the court set a briefing schedule on the issue of appellant’s right to a jury trial. After receiving briefs, the court ruled that there was no right to a jury trial in this case. Appellant requested permission for an inter
Eleven days before the new trial date, appellant filed with this court a “Petition for Writ of Prohibition and/or Writ of Mandamus” requesting this court to direct the trial court to afford him a trial by jury on his claims.
On January 4, 1993, the date set for trial with the parties’ agreement, appellant took the position that the pendency of his petition before this court divested the Superior Court of jurisdiction. The trial court stated that it would take the remainder of the day to determine the merit of that contention. The court also informed the parties that its “initial inclination” was that because appellant would have an adequate remedy on direct appeal, the petition for mandamus did not divest the trial court of jurisdiction. The court therefore specifically directed the parties to be prepared to go to trial on January 6 at 10:00 a.m. 4
On January 6, neither appellant nor Clark-ie Stebbins appeared for trial. At 10:09 a.m. the deputy clerk paged appellant and Clarkie Stebbins and called appellant’s home, but there was no answer. At 10:57, the court convened. Counsel for appellees represented that he had seen appellant at the courthouse the previous day and that appellant had given to him a paper styled, “Notice to the Court,” which stated appellant’s position that the court had been divested of jurisdiction by the filing of the petition for mandamus. After making the foregoing representation, counsel moved to dismiss for want of prosecution. The court granted the motion, stating that “it will be with prejudice, as it appears that his actions were deliberate.”
On February 3, 1993 a motions division of this court summarily denied appellant’s petition for writ of prohibition or writ of mandamus. Emmett J. Stebbins v. Robert A. Shuker, 92-SP-1521 (D.C. Feb. 3, 1993). The following day appellant filed a notice of appeal from the January 6 dismissal.
II.
We review two issues 5 : (1) whether the trial court had jurisdiction to hear and dismiss the case during the pendency of his petition for mandamus; and, if so, (2) whether the trial court abused its discretion in dismissing the action with prejudice for failure to prosecute. We address each in turn.
A.
Jurisdiction of Trial Court During Pendency of Petition for Mandamus
Appellant’s principal argument is that his request for an extraordinary writ from this court deprived the trial court of jurisdiction to proceed during the pendency of his request. He reasons that the filing of a notice of appeal deprives the trial court of jurisdiction, citing
Griggs v. Provident Consumer Discount Co.,
We recognize that the courts of this jurisdiction have often stated in general terms that an act of the trial court taken during the pendency of appellate review of the matter is void because the trial court lacked jurisdiction.
See Abrams v. Abrams,
These cases, however, do not stand for the proposition that the trial court loses all power to act in a case whenever an appeal is filed from any aspect of the case. What the cases do is apportion the proper scope of action of the trial court vis — vis the matter pending in the appeal court. As we have observed,
[wjhile the line that marks the division between what the trial court may and may not do is usually cast in terms of “lack of jurisdiction,” the doctrine is judge-made, designed to avoid the confusion and waste of time that might flow from having two courts deal with a single ease at the same time. Hence, it is subject to a commonsense flexibility in application.
Carter v. Cathedral Ave. Coop.,
The term “jurisdiction” traditionally has been used to refer to the types of disputes, as defined by the legislature or constitution, for which a court is created, and usually is applied at the outset of a case to determine a court’s competence to hear a matter. The “jurisdiction” of a trial court following an appeal, on the other hand, is circumscribed by decisional law in order to
The rule against trial court action affecting matters on appeal is grounded not in metaphysical notions regarding transfer of power, but on practical considerations concerning efficient judicial administration. It is clear, for example, that “a party may seek disposition in the trial court of
other
matters which do not result in revocation or alteration of the judgment on appeal.”
Padgett v. Padgett,
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
We apply the same practical considerations used in cases involving appeals to the petition for mandamus in the instant case. We turn first to an examination of the nature of the extraordinary writs and whether a petition for mandamus directed to the trial court should operate as a stay of further proceedings in the trial court in order to allow effective appellate consideration of the petition. In
Morrow v. District of Columbia,
[T]he issuance of the writ is a matter of sound discretion. The governing principles are equitable, even though the writ of mandamus technically issues at law. The appellate court issues the writ in two classic situations: where the lower court has acted without jurisdiction or power, or where the lower court has clearly abused its discretion.
The writs are extraordinary remedies which are not to become mere substitutes for appeal. However, the writs can be issued where an appeal would ultimately lie, as well as where the action of the lowercourt would frustrate the appeal or would diminish the appellate jurisdiction already-obtained. Among the factors to he considered are whether the matter is of “public importance”; whether the policy against piecemeal appeals would be frustrated; whether there has been a willful disregard of legislative policy or of the rules of a higher court; and whether refusal to issue the writ may work a serious hardship on the parties. The clearer the lower court’s lack of jurisdiction the more appropriate will be the writs’ issuance, but the writs will issue where the question of jurisdiction is undecided.
Id.
at 168-69,
We have in subsequent cases used shorthand phrases to emphasize the demanding standards required in order for a writ of mandamus to issue. “[T]he party seeking it must show that its right to the issuance of the writ is ‘clear and indisputable.’ ”
United States v. Braman,
A writ is not a substitute for appeal and will not issue where adequate appellate review is available.
Bankers Life & Cas. Co. v. Holland,
The exercise of judicial restraint in granting a writ is particularly appropriate where the question in issue is the right to jury trial. In the typical case, a party denied his right to a jury trial suffers no especially great hardship — certainly none greater than any of the myriad other errors that may prejudice a party during trial court proceedings. Should the party seeking a jury not prevail on the merits of his claim or defense — by no means a given — a direct appeal from the resulting judgment and a new trial, if there were error in denying the jury, will suffice. The policy against piecemeal review would ordinarily counsel against reviewing by means of an extraordinary writ trial court actions that deny a party an asserted right to a jury trial. By waiting until after final judgment, the need for review may be entirely avoided or, if not, then consideration of other alleged trial errors may be joined with the jury issue, resulting in greater efficiency in appellate review. There could, of course, be peculiar circumstances in which use of an extraordinary writ to preserve the right to trial by jury may be appropriate.
Cf Mike’s Mfg. Co. v. Zimzoris,
We are aware that a line of older Supreme Court cases has held that a writ of mandamus will issue to preserve the right to a civil jury trial.
See Dairy Queen, Inc. v. Wood,
We note that in
First National Bank of Waukesha v. Warren,
We conclude that the concerns of judicial efficiency and fundamental fairness underlying the Supreme Court’s jurisprudence granting mandamus to review denials of jury trial are the product of either obsolete procedural requirements or peculiar circumstances not present in the vast bulk of proceedings. The considerations in
Ex parte Simons,
the seminal Supreme Court case upon which subsequent decisions rely, are no longer applicable because they related to concerns relevant to a time before the fusion of law and equity. For example, the consequence of the order at issue in
Ex parte Simons
was to require two separate proceedings, one legal and one equitable, including two trials.
Ex parte Simons, supra, 2A1
U.S. at 239-40,
The cases in which the Supreme Court has granted writs of mandamus to preserve jury trials since the fusion of law and equity and adoption of liberal discovery rules have relied, without discussion, on
Ex parte Simms. See Beacon Theatres, supra,
Because the decision whether to issue an extraordinary writ is discretionary and turns on the particular facts of a given case, it would be inexpedient to create a blanket rule that the mere filing of any such petition has the effect of freezing proceedings in the trial court. When an order is properly appealed as a matter of right, there is no doubt that this court will review it on its merits; hence, an automatic stay of further trial court proceedings concerning the matter appealed is appropriate. Most petitions for an extraordinary writ, including petitions seeking to vindicate the right to a jury trial, carry no similar guarantee of review on the merits.
Foster v. Canan,
Where the petitioner can make an adequate showing, including a threat of irreparable harm, this court has ample authority to stay some or all further proceedings in the trial court.
See, e.g., Carter, supra,
B.
Dismissal for Failure to Prosecute
In
Taylor v. Washington Hospital Center,
In such a situation the aggrieved plaintiff is free to — and should — proceed to trial as limited by the court’s procedural rulings, and if not successful at trial challenge those rulings on appeal. A trial judge understandably need not look kindly upon last-minute maneuvers which would wreak havoc on the court’s trial calendar, and in the face of a refusal to go forward may in his discretion reject plaintiffs suggestion of dismissing without prejudice or resorting to some other milder sanction.
Id. at 591 (citations omitted)
A plaintiff, in general, should proceed to trial by the court notwithstanding his belief that the trial court erred in deciding that he is not entitled to a jury trial. Only if the preliminary ruling is “so unjustly burdensome or promotive of a wastage of judicial resources” should we consider reversing a subsequent dismissal for refusal to go forward with trial. Id. at 591. Litigants should be encouraged to try their case rather than suffer dismissal or default. As discussed above, if the outcome is favorable to the party aggrieved by the preliminary ruling, then the necessity of an appeal may be obviated. Moreover, requiring the party to go forward avoids piecemeal review. By going forward with the trial, other issues requiring appellate review may be raised below and considered along with the challenged preliminary rulings.
The trial court’s decision to proceed in this case was not so burdensome or wasteful, if at all wasteful, that appellant’s failure to appear was justified. Appellant knowingly absented himself from trial because of his displeasure with a pretrial ruling. We hold that in such circumstances the trial court did not abuse its discretion in sanctioning his conduct with dismissal with prejudice.
III.
Because the trial court had jurisdiction to proceed with the trial, and the trial court did not abuse its discretion in dismissing with prejudice because of appellants’ willful actions, the judgment is
Affirmed.
Judge MACK, on the facts of this case, concurs in the result.
Notes
. The record in this case is sparse. The only pleading in the record is the civil complaint. In other papers in the record, captions indicate that there was a landlord-tenant action for possession and a probate case that had been consolidated with the civil action.
. Emmett Stebbins filed an appeal in this case pro se, but named both himself and Clarkie Steb-bins as appellants. Clarkie Stebbins did not sign the notice of appeal, as required by Rule 3(a). The relationship between Emmett Stebbins and Clarkie Stebbins is not apparent from the record. They each signed the civil complaint, giving different residential addresses. Because Emmett Stebbins does not appear to be an attorney, we conclude that he cannot represent Clarkie Steb-bins; hence, Emmett Stebbins is the only appellant.
.The docket sheet reflects a suggestion that Charles Stebbins had died a few days before the civil action was commenced. The record suggests that the civil action proceeded against his estate, which was represented by counsel for the other defendants.
. Initially, the court had stated that the trial, if any, would be the following day, Januaiy 5. After appellant stated that he had a conflicting obligation, the court set the trial for Januaiy 6.
. Because we conclude that the trial court had jurisdiction and did not err in dismissing plaintiffs’ claim, we need not address whether the right to a jury trial attached to any claim in the action. We are prevented from reaching the merits for another reason as well: Appellant has failed to provide a sufficient record for review.
See Cobb v. Standard Drug Co.,
Similarly, appellant’s claim that plaintiffs should have been granted default judgment must fail for want of an adequate record. The record does not contain any motion for a default judgment, nor does the docket contain an entry indicating that plaintiffs made any such motion in the trial court.
.
Ex parte Crane
is inapposite. In
Ex parte Crane,
Chief Justice Marshall, speaking for the Court, said, "A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States, is in the nature of appellate jurisdiction.”
. Our statutory authority to issue extraordinary writs comes from the All Writs Statute, 28 U.S.C. § 1651(a) (1988), which provides:
. The court prefaced its discourse with the remark,
It can fairly be said, however, that the course the [Supreme] Court has charted over the century and a half has not demonstrated the kind of precision or specificity which would make issuance of the writs a mechanical exercise. Rather than attempt to codify the many considerations into a set of unwieldy rules, we simply set out some of them....
Morrow, supra,
. We also note that the Seventh Circuit's view has not been adopted by all other federal courts of appeal.
See Kamen v. Nordberg,
. We do not decide whether, in the context of a claim of right to a jury in a criminal trial where the right is "clear and indisputable,” there is a separate requirement respecting the showing of injury that would result from requiring the defendant to appeal denial of the demand for a jury from a conviction.
. Our approach finds additional support in the decision in
Clark v. Taylor,