3 to its first decision, which it altered during the same term of court;1 to vacate an order opening a judgment and allowing the defendant to plead a discharge in bankruptcy;2 to allow costs in a case of damages which it had refused to do; to enter up a judgment on a verdict which was returned to the jury to further consider, who afterwards reported that they could not agree and were discharged; to allow an appeal by a curator and to certify the case up without his giving a bond as ordered, because it did not appear that the adverse party had asked for a bond, when by law the court could require it," to enter a decree upon a report of a referee; to increase the tax for school purposes; to reinstate a cause on the docket; to review its action in dismissing proceedings for contempt after hearing the evidence; to review any decision involving facts; 10 to punish parties for disobeying a subpoena duces tecum; to grant a rehearing in an equity case; 12 to reverse its action in extending the time for pleading; 13 and to proceed in the trial of a cause, when it had been advised that an injunction had been issued commanding the parties to such cause to take no further proceedings therein.14 6 8 11 § 188. Discretion of a court will be reviewed when it is guided by fraud, passion, prejudice or adverse interest. Though the rule is general that the action of the court, in State v. Washburn, 22 Wis. 99; People v. Sexton, 24 Cal. 78. The writ has been granted in such cases, because the act of the court was considered to be ministerial (Coit v. Elliott, 28 Ark. 294; Kennedy v. Woolfolk, 1 Overt. 453), or an appeal would be too late. Danville v. Blackwell, 80 Va. 38. 1 Foster v. Redfield, 50 Vt. 285. 2 Elkins v. Athearn, 2 Denio, 191. 3 Chase v. Blackstone C. Co., 10 Pick. 244. 4 State v. Clementson, 69 Wis. 628. 5 Potter v. Todd, 73 Mo. 101. Union County Court v. Robinson, 27 Ark. 116. 8 Hempstead County v. Grave, 44 Ark. 317. 9 Heilbron v. Superior Court, 72 Cal. 96; State v. Horner, 16 Mo. Ap. 191. 10 Oneida C. Pleas (Judges) v. People, 18 Wend. 79. 11 Burtis, Ex parte, 103 U. S. 238. 14 State v. Orphans' Court (Judge), 15 Ala. 740; People v. Muskegon Cir. Judge, 40 Mich. 63; People v. 6 Ludlum v. Fourth Dist. Ct., 9 Gilmer, 10 III. 242. Cal. 7. a matter calling for the exercise of its judgment or discretion, will not be reviewed or corrected by this writ, yet the courts will not adhere thereto when it is apparent that the action of the court proceeds from fraud, passion, prejudice or adverse interest; but such facts must be very clearly proved before a court will interfere by this writ.1 § 189. Mandamus to courts to compel judicial action, but not to control it.- Judges and courts, like all other officers and tribunals, may be compelled by the writ of mandamus to perform any ministerial act upon refusal so to do. So when any duty devolves upon them which calls for judgment and discretion, they cannot ignore it, but may be compelled by this writ to take cognizance thereof and come to some conclusion thereon, but the writ will in no manner direct the form or nature of such conclusion. The writ has been considered to be proper: to make a court hold a term of court; to compel the appointment of a guardian to defend an adult non compos who has been sued; to reverse the action of the court in refusing to allow a sheriffto amend his return, pending an action against him for judgment thereon, which is collateral to the suit wherein his return was made; to compel the granting of letters of administration to A., the refusal so to do not being either an interlocutory or a final judgment; to receive and enter the verdict of the jury; to enter a judgment on the verdict, when the court cannot on its own motion, or otherwise, set it aside and grant a new trial; to enter judgment on an alternative verdict according to the election of the 1 Union Colony v. Elliott, 5 Colo. 371; Schlaudecker v. Marshall, 72 Pa. St. 200; Vincent v. Bowes, 78 Mich. 315; Knarr's Petition, 127 Pa. St. 554; State v. Kirke, 12 Fla. 278; Virginia v. Rives, 100 U. S. 313; Manor v. McCall, 5 Ga. 522. See ante, §§ 40, 41, where the question is fully considered. 2 Trapnall, Ex parte, 6 Ark. 9. 496. 5 4 Casky v. Haviland, 13 Ala. 314. 5 Brennan v. Harris, 20 Ala. 185. Com. v. Norfolk (Sessions), 5 Mass. 434; State v. Knight, 46 Mo. 83; Com. v. Middlesex (Sessions), 9 Mass. 388. 7 Munkers v. Watson, 9 Kans. 668. 8 Lloyd v. Brinck, 35 Tex. 1. 9 State v. Adams, 76 Mo. 605; Lloyd v. Brinck, 35 Tex. 1; Cortleyou v. Ten Eyck, 22 N. J. L. 45; Brooke v. Ewers, 1 Stra. 113; Peo 6 5 plaintiff;1 to enter judgment in a criminal case and pass sentence accordingly; 2 to compel the court to make an entry on its minutes of its refusal to admit to probate the certified will of a non-resident, and to grant letters testamentary to the executor; to enter judgment on the report of a referee assessing damages on the dissolution of an injunction; to compel the judge to sign the judgment, to execute his sentence and to carry his decree into effect, when the appeal bond given was not sufficient to entitle the appellant to a supersedeas, though the court granted it; to compel a court to amend its records in accordance with the facts, which may be corrected though the case is appealed, prior to final judgment in the appellate court; to correct a judgment erroneously entered upon reasonable application, when the rights of third parties are not injured; 10 to enter up an award as the judgment of the court; " to compel a chancellor to make an order requiring the resstitution of money paid under a decree, which has been reversed on appeal; 12 to compel a court to reinstate on its ple v. Chenango (Just.), 1 John. Cas. 179. 1 State v. Mills, 27 Wis. 403. 2 State v. Snyder, 98 Mo. 555. 3 Williams v. Saunders, 5 Cold. 60. 4 Russell v. Elliott, 2 Cal. 245. 5 Life, etc. Co. v. Wilson, 8 Pet. 291; State v. Judge Fourth Dist. Ct., 28 La. An. 451. 6 United States V. Peters, 5 Cranch, 115; State v. Whittet, 61 Wis. 351. 119 Ind. 431), and will, it is claimed, produce anarchy in legal proceedings. Dixon v. Judge 2d Jud. Dist., 4 Mo. 286. The proper remedy is considered to be an application to the court itself, which will make the proper correction. King v. Hewes, 3 Ad. & E. 725; 5 N. & M. 139; King v. Leicestershire (Just.), 1 M. & S. 442. When the court has considered and overruled a motion to amend the judgment to conform to the complaint, its ac 7 Stafford v. Union Bank La., 17 tion is judicial and the remedy How. 275. 8 Hendee v. Cleveland, 54 Vt. 142; Taylor v. Gillette, 52 Conn. 216; State v. Whittet, 61 Wis. 351; Hollister v. Lucas Dist. Ct. (Judges), 8 Ohio St. 201; Howell v. Crutchfield, Hemp. 99; Frederick v. Mecosta Cir. Judge, 52 Mich. 529. This proposition is denied (White v. Burkett, must be sought by appeal or writ of error. Morgan, Ex parte, 114 U. S. 174. 9 Henderson, Ex parte, 84 Ala. 36. 10 Frederick v. Circuit Judge, 52 Mich. 529. 11 Dudley, Ex parte, 79 Ala. 187. 12 Walter Brothers, Ex parte, 89 Ala. 237. 3 docket a cause dismissed for not stating in the pleadings. the amount involved in the suit so as to show the jurisdiction of the court, when by the practice of the court such amount might be shown by other means;1 to compel county courts to put in their records in election cases their rulings, and sufficient of the evidence to explain them, in order that the circuit courts may properly review them in the certiorari proceedings prescribed by law; to compel the lower court to obey the mandate of the supreme court, which it disobeys, misconstrues or does not heed, and to enter the proper decree and to carry it into execution; to compel a court to make the necessary orders in a criminal case to enable the depositions of witnesses for the defendant, residing out of the state, to be taken; to compel a court to issue a writ of habeas corpus; to require a court to qualify a deputy-sheriff; " to compel a court to appoint commissioners to condemn land for, and assess the damages in the construction of, a railroad; to compel a court, as requested, to appoint a surveyor to vacate a public road; to compel a court to administer the oath of insolvency to a debtor and then to discharge him, though the court may believe he fraudulently conceals some of his assets; to compel a register to call a register's court, when in probating a will a difficult or disputable matter comes into controversy; 10 to enable the plaintiff, when refused permission by the court, to substitute another attorney for the one employed by B., to 1 Bradstreet, Ex parte, 7 Pet. 634. 2 Dryden v. Swinburne, 20 W. Va. 89. 3 Johnson v. Glascock, 2 Ala. 519; United States v. Fossatt, 21 How. 445; State v. Collins, 5 Wis. 339; Duffitt v. Crozier, 30 Kans. 150; Jared v. Hill, 1 Blackf. 155; Dubuque, etc., R. R. Ex parte, 1 Wall. 69. 4 Giboney v. Rogers, 32 Ark. 462. 5 Wright v. Johnson, 5 Ark. 687. 9 8 6 Day v. Fleming County Court (Just.), 3 B. Mon. 198; Applegate v. Applegate, 4 Metc. (Ky.) 236. 7 Illinois C. R. R. v. Rucker, 14 Ill. 353; Chicago, etc. R. R. v. Wilson, 17 Ill. 123. 8 State v. Salem Pleas (Judges), 9 N. J. L. 246. 9 Harrison v. Emmerson, 2 Leigh, 764. 10 Com. v. Bunn, 71 Pa. St. 405. 6 whom the plaintiff had conveyed a part interest in the claim in dispute with an agreement that B. should prosecute it;1 to compel the grant of administration on an estate to the person entitled to it;2 to obtain the release of one arrested on civil process immediately upon release from a similar arrest without having given him time to return home; to compel a judge to certify a cause in which he is interested as an attorney to the proper court; and to compel the trial court to fix the amount of the bond necessary to stay proceedings in a cause pending an appeal thereof to an appellate court." § 190. Mandamus lies to make a judge sign a bill of exceptions. A writ of mandamus lies to compel a judge to sign a bill of exceptions. Unless the bill of exceptions is signed, the appellant is unable to enjoy the benefits of the right of appeal, and the appellate jurisdiction of the higher courts cannot be exercised. The right to issue a mandamus for that purpose is well established. The signing and sealing of a bill of exceptions is both ministerial and judicial. The determination of what the bill shall contain is judicial,' consequently a mandamus to sign a bill of exceptions will only issue when there is a clear abuse of discretion. The writ will not direct the judge how to frame the bill of exceptions; it will run in the alternative parte, 5 Pet. 190; Sansome v. Myers, 80 Cal. 483; Chateaugay, etc. Co., Petitioner, 128 U. S. 544; People v. Crane, 60 Cal. 279; State v. Field, 37 Mo. Ap. 83; State v. Drew, 32 La. An. 1043; Briscoe v. Ward, 1 Har. & J. 165; People v. Washington C. Pleas (Judges), 2 Caines, 97; Etheridge v. Hall, 7 Port. 47. 'People v. Anthony, 129 Ill. 218; Clark v. Crane, 57 Cal. 629. 8 Alexander v. State, 82 Tenn. 88; State v. Brockwell, 84 Tenn. 683. 9 Chateaugay, etc. Co., Petitioner, 128 U. S. 544. |