NotFound

116 U.S. 401 (6 S.Ct. 387, 29 L.Ed. 676)

Ex parte BROWN and another, Petitioners.

Decided: January 18, 1886

J. H. Mitchell, for the motion.

WAITE, C. J.

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.

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