90 Cal. 201 | Cal. | 1891
— This is an original proceeding here in mandamus, by which petitioner seeks to have the respondent commanded to place on the calendar a certain action pending in his court, entitled Thaddeus Harper v. Thomas Hildreth et al., and to set said action for trial on a day certain, or to appoint a referee therein, and to proceed with the trial of said action. An alternative writ was issued, and upon the filing of respondent’s answer the case was argued and submitted on the petition and answer.
There is no doubt that a superior court may be compelled by mandamus to proceed in regular course to the trial of a cause, when without any legal reason it flatly refuses to do so. But the writ can be used for this purpose only when the action of the lower court is a plain refusal to perform a clear duty which the law specially enjoins; and the party invoking its aid must show a case where the duty of the court to do the thing asked is pure and simple, and unmixed with discretionary power or the exercise of judgment. Such a case the petitioner in the case at bar has not shown.
It appears that the said action of Harper v. Hildreth et al. was commenced in the court of respondent in June, 1884. The purpose of the action was to dissolve a part
Afterwards, on October 15, 1890, and while said motions were still under advisement, the petitioner herein, Alfred R Tomkin, having procured himself to be appointed administrator of said Thomas Hildreth, deceased, appeared by his attorney, and asked to be substituted as defendant. To this, Milton E. Babb, one of the attor
Under these circumstances, we do not think that the petitioner presents a clear field for the exercise of the extraordinary remedy of mandamus. Waiving all other considerations, we think that the court had the right to entertain the motion of amici curise to dismiss the action for want of prosecution. The object of the motion, as stated by them, was to purchase and procure good titles to lands which were embraced in and clouded by the action. The suit had been pending for six years, and no effort had been made by either of the parties to bring it to a trial. There was not—and for a long time had not been— any person representing either of the defendants; and the interests of the defendants in the lands affected by the suit had been long since transferred and conveyed to others. Whether or not, under these circumstances, the motion of Hawes and Graves—though not parties to the action— should be entertained, was a question which we think addressed itself to the judicial discretion of the court. It had the right to entertain the motion if it chose to do so. Parties have no right to perpetually encumber the records of a court with suits which they never intend to prosecute. And having entertained the motion, and taken it under advisement, the court cannot be compelled by mandamus to decide it within any specified time. For these and other reasons apparent on the face of the record, the peremptory writ must be denied. It is not to be presumed that the respondent will indulge in any unnecessary delay in disposing of the preliminary questions before him.
The application of petitioner is denied, and the proceeding dismissed.
De Haven, J., Garoutte, J., Harrison, J., and Sharp-stein, J., concurred.