Dey v. McAlister

• Decision Date: 04 January 1918
• Docket Number: Civil 1620
• Citation: 169 P. 458,19 Ariz. 306
• Parties: RICHARD V. DEY, Plaintiff, v. A. G. McALISTER, Judge of the Superior Court of Graham County, State of Arizona, Defendant
• Court: Arizona Supreme Court

169 P. 458

19 Ariz. 306

RICHARD V. DEY, Plaintiff, v. A. G. McALISTER, Judge of the Superior Court of Graham County, State of Arizona, Defendant

Civil No. 1620

Supreme Court of Arizona

January 4, 1918

Original proceeding. Petition for Writ of Mandamus.

Mr. Ben C. Hill, Mr. R. W. Sprague and Mr. Frank E. Curley, for Plaintiff.

Mr. A C. McKillop, Mr. W. R. Chambers and Mr. John H. Campbell, for Defendant.

OPINION

FRANKLIN, C. J.

This is an application for a peremptory writ of mandamus to issue from this court, compelling the judge of the superior court of the state of Arizona in and for Graham county to set a cause for trial. We will consider the scope of the writ applied for as compelling action by the superior court, as well as the judge thereof. To do this will prejudice no right of the defendant, and to do otherwise would permit mere technicality to cause delay.

The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. Paragraph 1553, Civil Code 1913. When the party seeking the relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable, the writ ought to issue.

It appears that a certain cause, wherein Richard V. Dey is plaintiff, and Laurel Canon Mining Company, a corporation, J A. Willis, C. H. Hodge, Charles H. Tanner, E. J. Van Dine, C. E. McBeth, Arthur Crowley, Ed Luxton, J. T. Vinyard, H. E. Fidler, and Al Davis, individually and as copartners doing business under the name of Laurel Canon Leasing Association, are the defendants, is pending in said superior court, ready for trial upon issues of both law and fact; that defendant refuses to take any action whatever in the matter so pending in said court until such time as the supreme court of Arizona shall render its decision in a certain cause appealed from said superior court. Litigants are entitled to have their causes determined orderly and with reasonable expedition. The trial judge is not justified in an arbitrary refusal to proceed with the timely determination of matters merely because, in his opinion, there may be another cause pending and undetermined on appeal which involves the same issues.

Such an issue, when properly raised, may be judicially determined but such an issue cannot be raised, nor can it be judicially determined, on motion for a continuance. Whatever may be the status in...