Wolf v. Mulcrevy

THE COURT.

Application for a writ of mandate directing the respondent to file, number, and index a petition for the probate of the estate of Tobe Funkenstein, deceased, separately from a similar petition in the matter of the same estate theretofore filed and pending in the superior court of the city and county of San Francisco, of which respondent is clerk.

[81]

We are. of the opinion that the clerk of the court is not invested with power to determine whether or not these two petitions for the probate of the estate of Funkenstein are identically the same, but even if he were, we are strongly impressed with the contention made by the respondent that the only right which the petitioner has is to have his petition filed, and if the clerk fails to file it properly, the petitioner then has his remedy in the superior court by an application there to have his paper filed, numbered, and indexed by the clerk as it ought to be. In short, no injury comes to him because his petition is filed and numbered with a similar pending petition, and the presumption is that the superior court will do what the law demands in the premises. It is conceded that the writ of mandate is issued by this court as a matter of discretion and not as of right, and in the present case there does not appear to be any injury suffered by the petitioner because of the action of the clerk. Moreover we are of the opinion that if the petitioner is entitled to the remedy prayed for, it may be plainly, speedily, and adequately had in the court below upon proper application and showing made there.

. For these reasons the writ is denied.