Fannin v. Keck

WADDILL, Commissioner. This is an original action in this Court. The petitioner, Orville Fannin, seeks an order of mandamus requiring the respondent, Honorable John H. Keck, as Judge of the Elliott Circuit Court, to grant summary-judgment in petitioner’s favor in certain consolidated actions which are now in the process of trial before Judge Keck. The record discloses that Judge Keck has acted upon the motion for summary judgment in the consolidated suit by entering an order therein overruling the motion. Thus, in effect, Judge Keck has decided that a trial should be had upon the merits of the controversy. Mandamus is a proper remedy to compel an inferior court to adjudicate on a subject within its jurisdiction, where the court neglects or refuses to do so,' but it will not lie to revise or correct a decision of a court. J. B. B. Coal Co. v. Halbcrt, 169 Ky. 687, 184 S.W. 1116. While mandamus will lie to set a court in motion, it cannot be used to control the result. Shine v. Kentucky Cent. R. Co., 85 Ky. 177, 3 S.W. 18. Gayheart v. Childers, 137 Ky. 472, 125 S.W. 1085. In short, mandamus will not issue to control the discretion of an inferior court. Hargis v. Swope, 272 Ky. 257, 114 S.W.2d 75; Goheen v. Myers,. 18 B. Monroe 423, 57 Ky. 423. The purpose of the mandamus sought herein is not to compel Judge Keck to act on the motion, for he has acted, but to control his discretion and to compel him to grant summary judgment in petitioner’s favor. Under these circumstances it is well-settled that this Court has no authority to issue the order requested. Boone v. Smith, Ky., 263 S.W.2d 928; Union Trust Co. v. Garnett, 254 Ky. 573, 72 S.W.2d 27; [227] Smith v. Shamburger, 314 Ky. 850, 238 S.W.2d 844. Wherefore, the application for an order of mandamus is denied and the petition is dismissed.