McCarty v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION.

• Decision Date: 10 May 1927
• Docket Number: No. 317.,317.
• Citation: 19 F.2d 462
• Parties: McCARTY v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 462 (1927)

McCARTY v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION.

No. 317.

Circuit Court of Appeals, Eighth Circuit.

May 10, 1927.

Before WALTER H. SANBORN, STONE, LEWIS, KENYON, VAN VALKENBURGH, and BOOTH, Circuit Judges.

PER CURIAM.

The object of the writ of mandamus is to enforce the performance of an existing duty, not to create a new one. The obligation must be both peremptory and plainly defined. The law must not only authorize the act, but it must require it to be done. Frankel v. Woodrough, 7 F. (2d) 796 (C. C. A. 8).

In reference to the issuance of a writ of mandamus by an appellate court, it was said in the Frankel Case:

"Where a trial court refuses without proper cause to try an action pending therein, appellate jurisdiction is affected and prevented, because such jurisdiction cannot become operative and effective until a final order, judgment, or decree is entered. Therefore, in such instances, the jurisdiction to issue original writs in aid of the appellate jurisdiction exists."

There is nothing in the record here presented, however, to show that the judge of the United States District Court for the Western District of Arkansas has ever been requested to take any steps looking toward the trial of the case against petitioner, or that he knows of the whereabouts of petitioner. Nor does the record show that said judge has had anything to do with preventing petitioner from having a speedy trial, or that said judge has had anything to do with petitioner being deprived of any rights to apply for parole from imprisonment. For these reasons the present petition for a writ of mandamus has been denied. Frankel v. Woodrough, supra; Bayard v. White, 127 U. S. 246, 8 S. Ct. 1223, 32 L. Ed. 116.

In the latter case the court said:

"The writ of mandamus is a remedy to compel the performance of a duty required by law, where the party seeking relief has no other legal remedy and the duty sought to be enforced is clear and indisputable. Knox County v. Aspinwall, 24 How. 377, 383 16 L. Ed. 735. Both requisites must concur in every case."

However, it does appear from the petition that the petitioner is a citizen of the United States, and is now confined in the penitentiary at Leavenworth, Kan., undergoing sentence for an offense committed against the United States; that an indictment is pending in the Western district of Arkansas against petitioner for another offense against the United States alleged to have been committed by him; and by inference, that petitioner wishes to be speedily tried on this pending indictment. Such being the situation, it may not be amiss to point out that this court has held in Frankel v. Woodrough, supra, that "a prisoner serving sentence for violating a law of the United...