The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-07-18

Fsr,t ,udislsi pissriet Of the state Of
Defendant and Respondent.
Tbs is. proceeding in Mandamus
to compel the respondent as Judge OF
the First Judicial District Court to
proceed to- hear and determine the
case of George Bachelor. Plaintiff v.
Rose Ann Bachelor. Defendant al
legged to be pending in said District
! Court.
In his petition relator among other,
things alleges:
/ That he commenced his action TOR /
divorce On the 23rd day OF February
A. D. 1905; that on the 10Th day OF
March 1905 the defendant appeared III
the action through her attorneys,
Messers Curler and hlng, they fling
an answer to the complaint; that on
the 4th day OF December 1905 the
respondent set the case for trial be-
fore jury on the 21st day of De-
cember 1905, that on the said 21st day
Of December 1905. plaintiffs attorney
IN said case, c. E. Mack, Esq, ap-
peared and requested the respondent
to proceed with the trial OF the case;
: that respondent refused to do so Civ
inc and stating his reasons for so
retilS;n g as follows:
The said defendant is insane and
c-'11ined in the Asylum tor Mental
diseases at Reno Nevada and that
: this relatOr, through his attorney. the
said c. E. Mack, thepeupon made a
demand upon the said respondent to
loceed with the trial OF said action,
: bit that the said respondent then and
' there refused and does now refuse to
' proceed with the trial thereof and
will not proceed to the trial OF SAID
action, without an order of this Court
I. compelling him so TO do
The respondents refusal to proceed
3 with the trial OF the case is based
: On the fact of the defendants IN
sanity. The complaint however alleged
Il thar the acts constituting the cause
of action in plaintiffs favor against
the defendant were committed by the
defendant before the insanity oc-
Cured.
Under these circumstances. | think
the fact of the insanity of the de-
fenda.t was not sufficient to justify
The respondent in his refusal to pro.
cecil with the trial OF the case.
Ii his return or answer to the
alternative writ herein the respondent
sets up other matters in Justification
OF his refusal to proceed with the
trial. to wit. a doubt whether or no,
ne summons in the action had been
properly served. the absence of the de-
PENDANTS attorneys. etc.
AS the case stands on the petition
and answer these matters cannot
avail him under his admissions that
he would never try the case while de-
fendant was insane. He did not deny
or answer the allegations in the
petition that on account of the In
sanity of the defendant he would not
+ even in future try the case. The al
n legation stands admitted by the fact
n Of rs being denied.
The other matters alleged in the
answer to the petition might perhaps
q nave justified the respondent in his
=. refusal to proceed with the trial a.
the time mentioned. But if such
were the case ne should nave sisni
e fed to Counsel his willingness and
D. intention to proceed wit the tria
:. at the proper time: and also have
- let them know wherein he deemed
IS their proceedings irregular and insult.
e ficient so thu. they cOulu nave amend
n. ed and corrected them and at some
time gotten trial of the case.
Therefore without passing on the
questions of the sufficiency of the
- service of summons in the case or any
- of the other matters stated in the
le answer of respondent except the
u single one of the sutficiency Of de
,e PENDANTS insanity as bar to pro
-, ceeding with the orderly hearing and
determination of the case. it is order
ed that the mandate of this court is
sue to the respondent that he proceed
with tue. hearing and determination
lie of the case. of course, first satisfying
IS himself upon all questions of service
). of summons, guardianship and juris
:" diction.
IL f1TZGERALD. T.. J
IS We concur
r.. TALBOT, J.
NORCROSS, J.