Davis v. County Commissioners

Appleton, C. J. The writ of mandamus is not a writ of right. The issuing, or the refusal to issue it, is a matter resting in judicial discretion. Belcher v. Treat, 61 Maine, 580. The petitioner presented to the county commissioners of this county a petition for an increase of damages from a road located over his land. The petition, after remaining some time upon the docket of the court, was dismissed for want of prosecution. The petitioner then made an application to the court for the restoration upon its docket of the original petition, which, upon a hearing, was denied. [398] This is a petition to this court for a writ of mandamus commanding the county commissioners to reinstate the petition for an increase of damages. The dismissal of an action, or other judicial process, for want of prosecution, rests in the judicial discretion of the court in which the proceedings are pending. So, when an action, or other judicial process has been dismissed, whether it shall again be restored to the docket is equally a matter of discretion on the part of the court to which the application is made. The general rule is that when a question is submitted to the discretion of a judicial officer, his judgment is conclusive. He is not to be controlled by any discretion but his own. Where an inferior court has discretion in relation to the proceedings pending before it, and proceeds to exercise it, the court will not control that discretion by mandamus. Hull v. Supervisors of Albany, 19 Johns., 259; Ex parte Bacon & Lyon, 6 Conn., 392. If it appear that the sessions have exercised a discretion in a matter which properly belongs to their jurisdiction, it is almost an invariable rule that the court of King’s Bench does not interfere. Rex v. Horfolk, 1 D. & R., 74; Tapping on Mandamus, 13. The exercise of their discretion is not to be revised'by any other tribunal. Gibbs v. County Commissioners of Hampden, 19 Pick., 298. Such is the general rule, as stated above. There are, however, cases which show that, if the discretion of the couht below is exercised with manifest injustice, the court is not precluded from commanding its due exercise. Tapping on Mandamus, 14. But the present case does not justify, nor require, our interference. The tribunal before which the petition was pending heard the parties and their counsel and, in the exercise of their discretion, refused to allow the petition for increase of damages, which had been dismissed for want of prosecution, to be again restored. With their decision we are not inclined to interfere. Writ denied. Wanton, Dickerson, Barrows, Virgin and Peters, JJ., concurred.