Arizona miner., 1866-01-10


concurrcd in by Judge Turner;
Ia the matter of the application Of WIN.
Murray 2, nj. for writ Of mandamus "a hc I
issued 10 the Cier,, OF the Probate Court
Of the County of layapai. In the supreme
Court Of the Territory Of Arizona
This case Is the application Of VIM Murray
q "a. plaintiffs, in a suit pending in The Pro-
bate Court COR the county Of fayapai, under
the mining laws OF the Territory, for the -
suancc &C. a writ of mandamus, directing the
Clerk Of SAL Probate court TO enter the
default of a party IN said suit therein pend
ing. Til, application Is by motion founded
upon affidavit, one # the usual forms Of prac-
ticc for obtaining this writ, the other method
known 20 the law Is by petition. The parties
on the record 60 thi, application are the plain
tiff in the suit ia the court below, aud the
clerk Of that court The acknowledgement
of service of the affidavit and notice 81 the
motion by the clerk, the respondent IN the
proceeding. j. iu the first instance sufficient
20 warrant this Court in hearing the case
bat the real parties interested IN tie appliea-
ton are the parties 10 the slIt IN the court
below therefore, Ia hearing the application,
thi. Court viii allow auv uf the parties in
that suit IN be heard here. A. in Justice they
should du. well knowing that the clerk, tue
party % the record has 40 interest in fact In
the matter, and also, in pursuance Of the Wei
established practice Of courts in matters oi
this kind that All parties affect by this
writ sought may and should, IL they chop>c.
bc heard, AMI il j. the duty Of this Court %
see that no such stringent process as that %
writ Of mandamus should issue until al
parties really interested in the matter should
have an opportunity to be heard. The aiiI-
81 - g.
the court below, between the above named
parties, in the progress of which in the opin-
ION of the plaintiffs 70 give eta 'ency u their
suit, il became necessary to aid another party
which by order 0f the court below wa, al
lowed to bc done, and a Summon, ISSUED and
returns duly served for that purpose, that
after the Lapse Or time allowed for the appear
anoc Of such new defendant rs alleged by the
affidavit and the non-appearlnce 0f such de-
fcndant, tbs plaintiffs below, by their sttpr-
ney, applied 10 the clerk Of the court below
u enter the default Of such defendant, which
,h- clers refused 70 do, whereupon the plain
t.is make this application Tor tine fs-usiiyy e
a writ Of manlamus TO compel such entry
without showing that any application bal
been made 20 the c0ugt below % correct the
alleged wrongful refusal Of it, clerk.
In the view have been compelled g. take
Of tais case, il become, Of no importance u
enquire either a. 10 whether the pr)oee iincs
in the court below prior u the refusal o.. the
clerk complained Of were valid Or erroneous,
regular or irregular, or whether the form Of
the process used was or not warranted by law
or to 20 into any extended review Of tae stat
utes on the subject for the act or omission
complained Of and for which the cxtraordi-
nary process OF niandamus Is asked is merely
the act or omission Of the clerk and not %
the court whose ministerial of GER he Is, and
who at all times Is subject TO IT. control, and
this too without, in any way showing that
the court below had been applied 10 10 cor
rect the alleged wrong. THIS Court, or gen
cral principles, will presume that all ipfs-. z
courts and officers viii do their,,1if,. O..
bound u presllIne that ,tr,v ,,-rr,s,f,,I a. L
N'lle 10 ~ sl'y an until the powers Of the
= i " ~ clerk in question i the Z
=. HHS officer are invoked, 20 correct
.ie' MT errors or defaults either Of omis-
MY commission, think no such power can
e exercised by this Court. IL would destroy :
be harmony ami symmetry Of the whole :
ldicial economy AMI sap the foundations Of =
be legal and constitutional powers 81 all in =
nor courts over their practice aud the con !.
uct Of their ministerial officers and crowd
MS court with business not assigned - IL by >
lw, or is constitution. \ moments refec-
on viii suggest 10 any one the iucompati-
ility Of the exercise OF this jurisdiction by I
Us Court with the healthy action Of any =
ieTor court IL the exercise Of their well q
'fined powers. One vital principle nccessa-
% the healthy action, or even existence Of :.
" tribunal Is q fall control over it, officers =
I'd how utterly inconsistent Is that idea with =
le Tact Of this court attempting 70 control Z
rectly, the action Of a clerk Of an inferior
'urt entirely independent 81 the action Of !,
~ court 81 which lac j. clerk. If any infe- /,
or court, by itself or its clerk, commit err
~ IN the exercise OF it, experimenting and
syisDry jurisdiction, this Court will correct
lcm
The appropriate province of the process OF !
Iandamus, when addressed 20 a court. j. u y
uicken il 10 action when ii refuses 10 act.
M never % prescribe tie specific acton Ia >
Q had, fgT the discretion Of an inferior court
as ample aud complete a the discretion Of
as Court IN all matters within it, iurisdic- =
Oh. II in the exercise Of such discretion '
ie inferior court commit errors. this Court
NY under the Law and IL constitution re-
~ ami CORRECT tirvnt. II the ihfs5i';i s;;;sTts
fuses to act, this Court may by this process
'mpel action but never prescribe the partic-
ar action 70 be had II IN such action the
ferioF court transocnls is powers or other
ise errs, this Court may on review restrain o
NJ correct the same. On the argument and
, the affidavit in this case, it appear. that
ie summons therein issued for bringing in a
.w party was signed by tie attorney and
It By the Clerk, or under the seal Of the
urt below. The decision Of this question 4
not necessary 70 the disposition Of this case,
ereiore any opinion on the matter might
obber dic,om and in no way binding on the
ture action Of this Court, but | have no II
.sitation in expressing the opinion (under
e above limitations) that the summons in
is case, signed and issued BIS the attorney bl
d not By tine Clerk, and without the seal r.
the court below, was under the laws Of ri
G Territory legally sufficient. But on the Il
lole case the motion for mandamas Is de AZ
"a and the writ refused d,