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Ex parte BROWN and another

January 18, 1886

EX PARTE BROWN AND ANOTHER, PETITIONERS.


The opinion of the court was delivered by: Waite, C. J.

J. H. Mitchell, for the motion.

This motion is denied. According to the petition, the court entertained jurisdiction of the cause, but dismissed it for want of due prosecution; that is to say, because errors had not been assigned in accordance with the rules of practice applicable to the form of the action. This is a judgment which can only be reviewed by writ of error or appeal, as the case may be. Mandamus lies to compel a court to take jurisdiction in a proper case, but not to control its discretion while acting within its jurisdiction. This rule is elementary. Ex parte Morgan, 114 U. S. 174, S. C. 5 Sup. Ct. Rep. 825, and cases cited.

18860118

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