215 S.W.2d 947 | Ky. Ct. App. | 1948
Denying writ.
This is an original action for a writ of mandamus directed to the judge of the Pike Circuit Court to enter an order for the sale of land. After the death of the original respondent, Judge R. Monroe Fields, the case was revived against his successor in office, Judge E.D. Stephenson.
In action brought under an act of 1906, Chapter 22, Laws 1906, it was adjudged on February 14, 1908, that certain large bodies of land in Pike and other counties, aggregating nearly 450,000 acres, be forfeited to the Commonwealth for the nonpayment of taxes. The judgments were affirmed in Eastern Kentucky Coal Lands Corp. v. Commonwealth of Kentucky,
It appears that no further action was taken in the case in Pike County in relation to what is designated as tract No. 21 until one of the defendants therein, George H. Taylor, filed a motion on May 10, 1947, for the entry of an order of sale thereof. The Commonwealth, through the Commonwealth's Attorney for the district, filed an objection. The petition of Taylor in this court alleges that Judge Fields had declined to enter an order of sale as prayed, "although it was the legal duty of the defendant to do so."
The response of Judge Fields files copies of the record since the making of the motion. It shows that testimony was heard proving the loss of the original records in the case other than the orders of the court. Judge Fields stated his willingness to conform with any views expressed by this court and, of course, to obey its orders. He added, however, that he had regarded the following order, which he had previously entered, as a final and appealable judgment. After reciting the current proceedings, the order continues: "and the court being of the opinion that by reason of the running of the Statute of Limitations and the operation of the doctrine of laches, the right of the said defendant to the relief requested in said motion has been barred. It is, therefore, ordered that said motion be and the same is hereby overruled, to which the defendant, George H. Taylor, objects and excepts."
Under the power granted to this court by section 110 of the Constitution to issue such writs as may be necessary to control courts of inferior jurisdiction, we may direct a circuit court to act in a given case when sufficient cause has been shown why he should take some sort of action, one way or another. But in an original proceeding this court will not control the judicial discretion of a trial court by mandatorily directing what *70
decision he shall make in a particular case. Speckert v. Ray,
Davidson v. Lewis,
In the present case, the circuit court had already acted and entered a final judgment before this proceeding was filed. The remedy of the aggrieved party is an appeal. Henry v. Harris,
Wherefore, the writ is denied and the petition dismissed.