Hamby v. Pope

Grice, Presiding Justice. The appellant complains of the dismissal of his complaint filed in a superior court against a superior court judge, seeking the writ of mandamus to prevent him from violating Art. I, Sec. I, Par. IV (Code Ann. §2-104), which provides that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney or both.” The dismissal was correct. The rule is well established that one superior court judge has no power to issue the writ of mandamus to compel another superior court judge to perform an official duty. "This is so for the reason that the writ issues only from a superior court to an inferior court, to do those acts which clearly appertain to its duty. The very etymology of the word 'mandamus’ — we command, implies superior power; the power of a suprior authority to compel an official or inferior judicature to act. The same reason which prohibits an inferior court from controlling the conduct of a superior tribunal applies just as cogently to the effort of one judge to compel the action of another judge or co-ordinate jurisdiction and power.” Shreve v. Pendleton, 129 Ga. 374, 375 (58 SE 880, 12 AC 563). See also Elliott v. Hipp, 134 Ga. 844 (1) (68 SE 736, 137 ASR 272, 20 AC 423); Elliott v. Leathers, 223 Ga. 497, 502 (156 SE2d 440). In this appeal it follows that the merits of the complaint are not in issue. Judgment affirmed. All the Justices concur. Hawes and Gunter, JJ., concur specially.