Tomkin v. Harris

McFarland, J. — This is an original proceeding here in mandamus, by which petitioner seeks to have the respondent commanded to place on the calendar a certain action pending in his court, entitled Thaddeus Harper v. Thomas Hildreth et al., and to set said action for trial on a day certain, or to appoint a referee therein, and to proceed with the trial of said action. An alternative writ was issued, and upon the filing of respondent’s answer the case was argued and submitted on the petition and answer.

There is no doubt that a superior court may be compelled by mandamus to proceed in regular course to the trial of a cause, when without any legal reason it flatly refuses to do so. But the writ can be used for this purpose only when the action of the lower court is a plain refusal to perform a clear duty which the law specially enjoins; and the party invoking its aid must show a case where the duty of the court to do the thing asked is pure and simple, and unmixed with discretionary power or the exercise of judgment. Such a case the petitioner in the case at bar has not shown.

It appears that the said action of Harper v. Hildreth et al. was commenced in the court of respondent in June, 1884. The purpose of the action was to dissolve a part[203]nership between Harper and Hildreth, who had been engaged in raising cattle and other live-stock, and in buying, selling, and improving lands, and for an accounting, Harper alleging that Hildreth was largely indebted to him on account of said partnership. It was averred in the complaint that said Harper and Hildreth, as partners, were the owners of more than thirteen thousand acres of land in Fresno County; and Kate D. McLaughlin, as executrix and devisee of Charles McLaughlin, deceased, was made a party defendant to the action as claiming an interest in said lands. No answer appears to have been filed in the case until May 14,1885, when Hildreth filed an answer admitting the partnership, but denying any indebtedness to Harper, and alleging that upon an accounting Harper would be indebted to him (Hildreth) in the sum of thirty-three thousand dollars, for which amount he prayed judgment against the plaintiff, Harper. Nothing further seems to have been done, or asked to be done,in the casebefore June 29,1886, when the defendant Hildreth died in Santa Clara County. He left a will, in which his widow, Laura L. Hildreth, was named as executrix; and on January 20,1887, she was substituted as defendant in the case. It appears that at sometime,not stated, a referee was appointed, but he died without making any report. Afterwards, in October, 1887, the said Laura was discharged of her trust as executrix by the superior court of Santa Clara County. Afterwards one Dunphy was appointed administrator; but he was also discharged as administrator by the superior court of Santa Clara County, in April, 1890, without ever having been substituted as a party to the action. In the mean time the defendant Kate L. McLaughlin had died, and no one had been substituted in her place as defendant. The action slept along until April, 1890, when Horace Hawes and W. C. Graves, in the character of amici curise, upon notice to plaintiff, moved the court to dismiss the action for want of prosecution.