Winter v. Superior Court

Foote, C. The wife of Thomas P. Winter instituted against him an action for permanent support and maintenance. Pendente lite, the judge of the Superior Court to whom the cause had been assigned for trial made an order directing the payment to the wife of a sum of money as counsel fees. From that order the defendant took an appeal to this court, and pending that, applied to the court below to proceed with the cause on the day upon which it had been set for trial, said day having been specified before the order to pay counsel fees was made. This, it is alleged by him, the court refused to do, and he applied for and obtained a writ of mandate from this court for such judge to show cause why he had not proceeded to the trial of the action of Annie Winter v. Thomas P. Winter.

From the answer of the trial judge, it appears “ that he refused to compel the plaintiff to try said cause ” until the order for the payment of counsel fees had been com[296]plied with, or until this court had reversed or annulled that order.

It does not appear to be disputed in any quarter that the plaintiff is the wife of Thomas P. Winter

Under such circumstances, we cannot say that the learned judge abused the discretion vested in him as to when causes before him should be set for trial.

We are of opinion that the petition should be dismissed and the writ denied.

Belcher, 0. 0., and Searls, 0., concurred.

The Court. For the reasons given in the foregoing opinion, the petition is dismissed and writ denied.