State ex rel. Dusinberre v. Hunter

The opinion of the court was delivered by

The application for the alternative writ of mandamus must be denied, for two reasons: First, Because it does not appear from the papers upon which the application is founded, that anything will be gained by its issuance. From such papers it appears that action is required of the court when sitting as such in the county of Lewis. It further appears that the judge will not be holding court in that county again until the October session thereof, and hence could not proceed in obedience to the alternative writ, or the peremptory one which might b© *652thereafter issued, until that time. It also appears from the application, by fair inference, that the judge, without the interposition of this court, will proceed to hear and determine the action at said October session. He will thus voluntarily do all that this court could properly require him to do. Secondly, The papers upon which said application is based, show affirmatively that service was had upon defendant by publication, and failed to showthat such proofs had been taken or offered before the court as to authorize an entry of judgment as prayed in the complaint. The only proof offered, as shown by such application, was the original note and mortgage upon which the action was brought, without any proof of their authenticity, and without any offer on the part of the plaintiff, or any one in his behalf, to be sworn respecting any payments that may have been made on said note and mortgage to him or anyone for his use on account thereof, as required by subdivision 3 of § 412, Code Proc. It follows that the plaintiff had not entitled himself to judgment, and as there is no motion for default separate from that for judgment, the court was justified in refusing to grant the motion.

It does not affirmatively appear from said application that the court was ever asked to simply enter the default of the defendant. Mandamus will not issue to compel action on the part of an inferior court until it is made clearly to appear to this court that such inferior court has been regularly and properly moved to take the required action, and has unwarrantably refused to act. And, further, that the issuance of such writ will probably result in some substantial benefit to the party moving for it.

Anders, C. J., and Scott and Stiles, JJ., concur.

(dissenting). — I dissent. I think the application shows that the court was asked to enter default against the defendant. The plaintiff was entitled to his de*653fault, and it seems to me that it was pure captiousness on the part of the judge to refuse to grant it; and that he should be compelled to do so.