#### LEVIN *v.*HANLEY, ET AL.

Mandate — procedendo—certiorari -clerk’s duty — irregular proceedings — practice.

Where a mandate or procedendo from a superior to an inferior court is presented, and the inferior court is moved in accordance with its command to proceed in the cause, it has no discretion to obey or refuse, but must proceed.

The refusal to obey in such case does not open the door for correcting the refusal by writ of error; coercive measures should be resorted to.

The original papers in a caure are not removed from the Common Pleas by writ of error, that vfyrit only brings up a transcript of the record.

*589The common summary transcript and special mandate in cases appealed, or brought up on error, should be made out in each case, and delivered to the party interested on application —it is not the duty of the clerk of the Supreme Court to make them out without application and deliver them to the clerk of the Common Fleas.

The Court' of Common Fleas must order the execution of such a mandate, its clerk has no authority to do it without such order.

The presentation by the clerk withoutauthority, of an informal mandate to the Common Pleas, and a common entry thereon, and a delay of several terms in proceeding, is not a discontinuance of the suit, nor a bar to the proper writ.

If certiorari has brought up the proceedings of the Court of Common Pleas, they are subject to the inspection of the Supreme Court, and may bo used to enforce the plaintiff’s rights, by procedendo or otherwise, although he has improperly assigned errors upon them.

Certiorari to the Common Pleas. The plaintiff heretofore brought assault and battery against the defendants, which was tried upon *not guilty,*and two special pleas; verdict ‘guilty, as in the declaration is alleged,’ and judgment. The defendant removed the record by writ of error into this court, where the proceedings in the cause after verdict were reversed, because the finding of the jury as entered did not respond to all the issues. This court recognized the right of the Court of Common Pleas to put the verdict into shape, and remanded the cause for further proceedings. (See 5 *O. R.*238.)

At the next term of the Common Pleas is this entry, ‘ *Hanley et al.*v. *Levin,*.assault and battery on error. Judgment reversed, remanded for further proceedings.’

A year.afterwards the plaintiff’s counsel moved to docket the cause according to the order of the Supreme Court. The defendant objected that the record had been filed for the plaintiff’s inspection long since, and he had suffered several terms of the court to elapse without further steps, and had thus discontinued the cause. The Common Pleas overruled the motion to docket the cause, and sealed a bill of exceptions, upon which this certiorari is brought.

*Conover,*for the plaintiff in error.

*Storer*and *Fox,*contra.

Wright, J.

If the party interested in the mandate of a superior to an inferior court, for further proceedings in a cause, present the mandate and move to reinstate the cause, it does not lie in the discretion of the inferior court to *obey*or *refuse.*If the mandate have the obligation of authority, the inferior court *must obey.*Counsel for the defendants are mistaken in the supposition that the papers in the cause are removed on error to the Supreme Court and remain here with our clerk until called for. The *original*papers remain in the Common Pleas, a *transcript only*of the record, by our law, is sent up on error. The law authorizing a *summary transcript,*and *specialmandate*to the .Common Pleas relates only to judgment on error where no other action of the inferior court is required than process *590of execution. That transcript and mandate should *be made*by the clerk of the Supreme Court in each case, for the party interested, who has a right to it on application and the payment of the clerk’s fees. The clerk of the Supreme Court is under no obligation, if he has authority, to transmit the mandate to the Court of-- Common Pleas or to its clerk; nor has the clerk of that court, if the mandate were filed in his office, authority to act upon -it without the order of the Court of Common Pleas on the subject.

In this case it appears the clerk of this court made out and transmitted to the clerk of the Court of Common Pleas a paper, called a transcript and mandate. It has little of technical form or comeliness, by which its true character is marked, or its object made known. It fails to convey information to the Court of Common Pleas, by command or otherwise, what is required of it — whether to issue process of execution merely for costs of the writ of error, proceed to make restitution for the loss sustained by the erroneous judgment, or to reinstate and proceed further in the cause. It states in general terms the judgment of the Court of Errors, but *requires*nothing of - the inferior court. It shows that the Supreme Court *directed*a mandate, but not that the mandate issued in pursuance of the direction. It barely showed that some *‘further*proceedings’ were intended to be had. We are clear that the Common Pleas when properly applied to, with a mandate or procedendo, has no discretionary power to enter or refuse to docket the cause and proceed-That court *might*have made the entry upon the informal and bungling mandate sent to it; but was not bound to do so, and we doubt the policy of sanctioning so loose a practice in either court.' The refusal to enter the cause on that application, lays no foundation, however, for an application to a court of error to *reverse*the refusing order of the Common Pleas. When the action of this court is invoked, to compel an inferior court to obey its mandates, coercive process is sought, not the reversal of the refusing order. Express authority is conferred upon this court to issue a writ of procedendo in cases brought into it by writ of error, and reversed in whole or in part: (29 O. *L.*77, 8.) The delay in applying for the writ, does not work a *discontinuance*of the case. It may- be sued out now, unless the case is beyond the reach of this Court. The special mandate having been sent to the Common Pleas, correct practice would require of this Court to forbear further proceeding until officially advised of the steps taken in the premises by the Court of Common Pleas. That court speaks only by its minutes; and a writ of certiorari is the proper writ to remove them here for inspection— *591and therefore the entries of that court in this case are properly before us for examination. Does the mistake of the plaintiff in assigning errors upon the transcript, and improperly requiring of this Court to reverse the order of the Common Pleas, deprive him of his rightful remedy on his writ? We think not. He can now move for a procedendo if he choose to do so. We regard all the proceedings upon this writ, requiring our action as a court of error merely, as a nullity, but the writ remains good for any other purpose.

A writ of procedendo was then moved for and awarded.