White Pine news. [volume] (East Ely, Nev.) 1920-1923, 1922-04-16
NEVADA SUPREME COURT DENIES
WRIT Of MANOAMUS TO STRIKE
REPORT Of RECENT GRAND JURY

BY an opinion and decision filed il
the supreme court last week the ap-
plication made by Counsellor An
thony Jurich on behalf of former
County Commissioners John Weber
and w L. Meyers and the present
chairman of the hoard, Robert l..
Tucker, for a writ of mandamus COM
pelling District Judge e. j. McFad-
den 10 strike from the files of the
court the report of the recent grand
Jury the application Is denied by the
court of last resort, the reason being
given is that mandamus is not a
proper remedy in the case, hence the
merits are in no way passed upon by
the decision.
When seen by a representative of
the News Attorney Jurich said:
| shall Immediately make appli-
cation for a rehearing but under the
decision as rendered 1t would seem
that the only remedy for the COM
missioners who seek relies IL by a
direct action for damages against the
members of the grand jury, and /
have advised that course
The supreme court opinion. which
was written by Justice Dueker and
coneurred in by Justices Coleman
and Sanders, gives the reasons for
refusing to pass upon the merits ard
denying the writ of mandate as fol-
lows:
Counsel for respondent insist that
mandamus Is not a proper remedy in
this case and we agree with their
contention Whether il was respond
ent's legal duty under the facts stat
ed In the petition to grant the mo-
tion cannot he inquired into in this
proceeding The act sought to be
reviewed and reversed was not a
ministerial act. The power to strike
or refuse to strike the report from
the files of the court involved the
exercise OF purely judicial functions.
II is a rule of general acceptance
that mandamus will not lie 10 control
discretion or revise judicial action.
IS r. C. L.. 297-299; Highs Ex-
traordinary Legal Remedies, third
ed, PIP. 81. 32. 169. Ia. This rule
is we'll settled IL this state State Y.
Curler. New. 445: State ex rel.
Hetzel v Board of Commissioners of
Eureka County, New. 800; Hoole
v. Kinkead. 16 New, 2i7: State v.
Curler. 26 New, 347; State V. Dis
triet Court, 40 New, 16S In the
latter case this court recognized the
ktDtAdi dtftptdnAG VI 1iif lhiG III Aht
following language:
:" 1T needs no citation of author
ity to support the well-established
rule that the writ of mandamus will
not assume the function of writ Of
error, nor will 1t serve to require
the inferior tribunal to act In a par.
ticular manner or to enter any par
ticular judgment or order. On the
contrary, 1t serves only to compel
the doing of some act which IL IS the
clear, legal duty of the lower court
In some way to do
The present case does not fall
within the class OF cases decided by
this court In which IT was held that
the general rule did not apply. as
State V Murphy, 10 New, So In
which 1t was held that the rule had
no application to the determination of
preliminary questions relating to the
settlement of a statement on motion
for n new trial; or State v Floyd. SO
New 349. and State v. Roberts et
ais, 43 New. 332. in which cases 1t
was determined that mandamns was
a proper remedy to compel district
court to assume jurisdiction and try
n cause on appeal. when II has err
roneodsly decided that II had no jur-
isdiction
I'm the present case no prelim-
mary question was involved nor did
the court decline TO proceed TO de-
termine the matter presented by the
motion On the contrary, 1t enter
tained the motion and made its or.
der refusing to strike the report of
the grand jury from the files of the
court We cannot now. under the
rule stated. issue the writ of man.
date TO review the judgment of the
lower court. We are aware. and
counsel for petitioner by citation has
nrnnl nE nIlD TnWM