The record-union., 1891-01-16
SUPREME COURT DECISIONS.
Filled January a, 1911
IN BANK.
CoFFEY, Respondent, !
mo. 14,o1o.

SVrFE1, IAeSpOnue1l,
GRAND COUNCIL, Petitioncr.)
This is an application for a writ of mandate
to compel Hon. j. 7. Hoge, a Judge OF the Su-
the case of Coffey VS.. The Grand Council OF the
Young Mems Institute, and should be entitled
OcTey VS.. Hoge, Judge.
On the petitioners own showing We thlnk
1t is not entitled to the writ prayed for.
After judgment in the court below in favor OF
the plaintin, the defendant in due time served
Its notice of intention to move for a new trial
and proposed statement. Proposed amend
ments were served January 80, 1890, and on
February Sd deiendan served notice that they
were not accepted and that the proposed state
ment and amendments would be presented to
the Judge on February 10, 1890, at 10 A. NJ.
Counsel for the plaintiff appeared before the
on behalf of the defendant, nor was the proper
statement presented until O'Clock of the day
named, when its counsel went to the cham
bers OF the Judge and asked permission to
withdraw the proposed statement and amend
ments for the purpose of seeing II the attor-
neys for the res pective parties could not agree
upon a settlement. Two days later he called
at the office OF the plaintiffs attorney for q
voluntary settlement, but the latter refused to
consider the proposal, claiming that defendant
had lost the right TO settlement by reason OF
its laches. Thereupon defendants counsel in-
corporated all of the proposed amendments in
the statement and presented an engrossed
copy of the same to the Judge for his certifi-
cate on March IL, $50, but the latter refused
and still refuses TO sign the same, claiming
That he 1au lOSI lurlSQlcIiOn 10 ACT upon IL.
The petitioner alleges that its counsel was
engaged in causes pending in other depart
ments OF the Superior Court, and for that rea-
son overlooked the hour for which the settle
nent of the statement had been fixed. II
there is any power TO relieve q party from the
effect of such an inadVertence it is in the court
below. not here. The matter was presented TO
the Judge, and the petition shows that the
petitioner was given repeated hearings on its
application, all parties being present. AS
stated before, If there was any power any
where to relieve the petitioner from It's de-
fault, and If good cause could be shown in
that behalf the court below was the proper
tribunal to determine the matter, ana we
must assume that it did not abuse its discre-
tion on the showing made by the parties.
Furthermore, it appears that counsel for the
petitioner did not ask the Judge to settle the
statement when he appeared before the latter
at 2 O'Clock, and that he did not leave the
papers with the Judge, but Withdrew them
Instead of going Immediately to the attorney
for the adverse party to see If n voluntary set
Ilement could be had, he held the papers Tor
two days, and after being informed that no
settlement could be made the reasons foT
which were given, he held them for about a
month before any attempt was made to secure
the certificate of the Judge. No excuse is
Offered for these delays
Counsel for petitioner asked at the hearing
TO be allowed to amend the petition, so as to
set out the conversation between himself and
the Judge which occurred at = o'clock Febru-
airy 10th, as fully 1t is set out in his affida-
Wit in opposition to the motion made in De
partment One of this court to dismiss the ap-
peal. II the petition can be amended in any
case after an alternate writ has been issued
and the respondent has appeared and an
swered the same, it would be useless to allow
1t in this case We have looked into the atli-
davit referred to, and there is nothing there
alleged which would have any material bear
ing on the question before us.
No copy of the petition or of the writ was
served on the plaintiff, and respondent
has moved to dismiss on that ground. Rule
rs requires the petitioner to serve copies on
the party in interest. This would of itself be
sufficient ground for dismissipg the petition
no offer having been made to comply with the
rule.
The demurrer is sustained without leave to
emend, and the alternate writ is discharged.
PATERSON, j.
We concur:
WORK, j.
SdAPSTEIN, ].
MCFARLAND, j.