dismissed. On the other hand, it is claimed that the dismissal of an appeal is a judicial action, and that a mandamus does not lie to review judicial action or to correct judicial errors, though there be no other mode of reviewing such ruling. It is claimed that a mandamus does not lie to make a court give a particular judgment, but merely to give a judgment, and this by its dismissal of the appeal it has already done, and that in such cases a writ of error will lie, and that, such other remedy existing, it is not proper to allow a mandamus. With many courts the right to issue a mandamus in such cases seems to turn on the question whether such dismissal of an appeal is to be regarded as a final judg ment, in which case a mandamus is refused, because another remedy is provided by statute, namely, an appeal or writ of error. This rule is adopted by the supreme court of the United States. In that court, when an appeal has been dismissed by a lower court upon a formal plea to the jurisdiction, such dismissal is regarded as a final judgment, which may be reviewed by appeal or writ of error, and a mandamus to review such action will be refused. On the other hand, that court has granted a writ of mandamus to compel a circuit court to reinstate and hear an appeal in a bankruptcy case from a district court, and to compel a court to reinstate an appeal which it had wrongfully refused to entertain on account of alleged irregularities in perfecting the appeal. The weight of authority seems to be that a writ of mandumus will lie in all cases to compel the reinstate 1 Jones v. Allen, 13 N. J. L. 97; Ten Eyck v. Farlee, 16 N. J. L. 348; Freas v. Jones, 16 N. J. L. 358; Adams v. Mathis, 18 N. J. L. 310. 2 Ewing v. Cohen, 63 Tex. 482; People v. Dutchess C. Pleas, 20 Wend. 658; State v. Wright, 4 Nev. 119; People v. Weston, 28 Cal. 639; Goheen v. Myers, 18 B. Mon. 423; State v. Smith, 105 Mo. 6; 16 S. W. Rep. 1052. 3 People v. Garnett, 130 Ill, 340. 4 Com. v. Philadelphia C. P. (Judges), 3 Binn. 273. 5 State v. Smith, 19 Wis. 531; Goheen v. Myers, 18 B. Mon. 423. 6 Baltimore, etc. R. R., Ex parte, 108 U. S. 566; Railway Co., Ex parte, 103 U. S. 794. 7 Insur Co. v. Comstock, 16 Wall. 258. 8 Hollon Parker, Petitioner, 131 U. S. 221. ment of an appeal, except when another remedy, as appeal or writ of error, is provided by statute, or the law evidently contemplates that the action of the court which dismissed the appeal shall be final.1 § 206. When an appeal is wrongfully dismissed for matters occurring subsequent to its docketing, it may be reinstated on the docket by a mandamus.- When an appeal has been wrongfully dismissed for matters occurring subsequent to its docketing, as for lack of prosecution or for errors, which the party should have been allowed to correct by amendment, a mandamus has been granted to reverse such action. In those states where such action is considered to be a final judgment, an appeal or writ of error would be the proper remedy, provided there be an appellate court with authority to review such final judg· ments. The existence of such a remedy is considered to be a good reason why a writ of mandamus should be refused. Where a court wrongfully dismissed an appeal on account of matters occurring subsequent to its docketing, a mandamus was issued to compel the reversal of such action. The power to issue the writ in that case was claimed by virtue of a superintending control over all other courts, given by the constitution to the higher court, though in the case in hearing such court had no appellate jurisdiction. This superintending control was held to be as broad as the exigency of the case demanded. The court reviewed the question of the legality of the issue of the writ of mandamus in such cases, and considered the law on the subject to be in a state of "painful vibration." 3 1 Among the cases which have allowed the writ in such cases may be cited: Hart v. Circuit Judge, 56 Mich. 592; People v. Cir. Judge Third Circuit, 19 Mich. 296; State v. Bergen C. Pleas (Judges), 2 Penn. 737. 2 People v. Wayne Cir. Ct. (Judge), 27 Mich. 303; Garrabrant v. McCloud, 15 N. J. L. 462; Ten Eyck v. Farlee, 1 J. Harr. (N. J.), 269, 348; Thorpe v. Keeler, 3 Harr. (N. J.), 251; Brown, Ex parte, 116 U. S. 401. 3 State v. Philips, 97 Mo. 331. § 207. When a mandamus lies to compel a court to hear a cause when it has declined to hear it by reason of an erroneous decision on some preliminary question.— When a court has refused to go into the merits of the action. on an erroneous construction of some question of practice preliminary to the whole case, a mandamus will issue to compel it to go on and try the case. In fact the erroneous decisions of a court upon preliminary questions, which induce it to decline to proceed further, may be reviewed by this writ, if such questions are questions of law, and also when such questions are questions of fact, provided the general nature of the duties whose performance is sought by this writ are considered to be ministerial, and the law did not intend the decision of the lower court on such pre. liminary matters to be final.2 § 208. Mandamus to compel the allowance of an appeal. Where a party is entitled to an appeal from a decree or judgment against him, he may by the assistance of the writ of mandamus compel the allowance of such an appeal, the duties of the court in such case being merely ministerial. The court will be required by this writ to do all acts necessary to make the right of appeal efficacious: to enter a nunc pro tunc order as of date of the motion; to make a record of the allowance of an appeal from a judg ment of the probate court; to allow an appeal from the probate of a codicil to a will;" to make out and deliver a transcript for the appeal or writ of error; and to entertain an application for the examination of an appeal bond, and, if found sufficient, to grant a supersedeas. It is no objec 1 State v. Ellis, 41 La. An. 41. 2 See § 44, 45, 46, 47 and 48, where the question is reviewed. 3 Ware v. McDonald, 62 Ala. 81; People v. Prendergast, 117 Ill. 588; State v. Murphy, 41 La. An. 526; Hall v. Audrain Co. (Court), 27 Mo. 329; United States v. Gomez, 3 Wall. 752; Louisville Ind. School v. Louisville (City), 88 Ky. 584. 4 McCreary v. Rogers, 35 Ark. 298. 5 Beebe v. Lockert, 6 Ark. 422. 6 Greathouse v. Jameson, 3 Colo. 397. 116. Rodgers v. Alexander, 35 Tex. 8 State v. Lewis, 71 Mo. 170. tion that the time for the doing of the act by the judge or court has expired, if the application was made in proper time. A party is not to be deprived of such rights by the negligence of public officers.1 § 209. Mandamus will not lie to a court when there is another remedy. Since a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong, a court will not be required by this writ to take any action when another remedy is provided. A mandamus will not lie to compel a court to set aside its order, which set aside an office judgment and allowed a party to plead, because the relator can ask for an execution on that judgment, and upon the refusal to grant his request can appeal to the appellate court.2 In committing a party to jail, or in requiring bond for his appearance to answer to a charge of crime, the judge or court acts judicially, and the correctness of the order or judgment cannot be inquired into by a mandamus. A mandamus will not lie to compel a court or magistrate to discharge a person alleged to be improperly detained under process therefrom. A habeas corpus is the usual remedy." A mandamus will be refused: to compel a judge, whose brother-in-law is to be tried before him, to interchange. with another judge, when the law provides that a lawyer may be selected to try the case; to compel a circuit court to grant an appeal when the appellate court can grant it; 5 to compel a court to approve the security for a writ of error when a justice of the appellate court can do it; to compel the court to withdraw its order not allowing a transcript to be made, though an appeal has been granted, till the appeal bond is filed, since a writ of error will take up the transcript as effectually as an appeal. 1 State v. Lewis, 71 Mo. 170. 5 Byrne v. Harbison, 1 Mo. 225. 6 Virginia Com'rs, Ex parte, 112 U. S. 177. 7 State v. Engleman, 45 Mo. 27. § 210. Litigants cannot by agreement create duties which courts may be compelled by mandamus to perform. Since the writ of mandamus lies only to enforce duties imposed by law, litigants cannot by their agreements create such duties for courts and ask for the assistance of this writ to compel the courts to perform them. A mandamus will not lie, where there is no law creating the duty: to compel a court to change the venue of a criminal case on the agreement of the parties;1 to compel a court to sign the report of the referees by virtue of a stipulation of the litigants, that referees should be appointed by the court to determine certain disputed facts, whose report, when filed, should be the finding of the court and should be signed by the judge; to compel a chancellor to dismiss a cause on motion in pursuance of a written agreement between the parties, or to compel a court to strike a cause from the docket on motion, on the ground that it has been discontinued by a submission to arbitration.1 5 § 211. Special instances where a mandamus was not required or would have been inefficacious. A writ of mandamus will not run to a court acting under a special commission, which has expired by its own limitation. Where a nonresident was arrested and required to give bail, which he did, a mandamus to discharge his bail was refused; if the arrest was valid no wrong was done, and if the arrest was invalid his bail was not liable." Where property was paid into the probate court in condemnation proceedings and wrongfully detained by the judge from the party entitled to it, it was considered that the judge held the property as an individual, and that an action on his bond was the remedy, and that a mandamus would not lie to compel payment till an action on the bond had proved unavailing. 1 Dennis, Ex parte, 48 Ala. 304. 4 Garlington, Ex parte, 26 Ala. 5 People v. Monroe O. and Terminer, 20 Wend. 108. 6 Small, Ex parte, 25 Ala. 74. 7 State v. Meiley, 22 Ohio St. 534. |