People ex rel. Cunningham v. Thistlewood

Scott, Ch. J.: It is insisted that the statute which regulates the practice concerning mandamus, and requires that a writ should be returnable in not less than five days, makes it also imperative that there should be service for that length of time. This court has had frequent occasion heretofore to decide that the statute regulating the practice in mandamus cases has no application to practice in this court. It was designed to regulate the practice in the circuit courts in such cases, and not in this court. We have therefore always required that, before a summons shall be issued, application shall he made to this court for leave to file the petition; and it is not issued as a matter of course, hut upon cause shown. We have, however, said, and the practice has been, that we will make the practice in such cases in this court conform, as near as may he, to that as regulated by statute for the circuit courts, and we have, therefore, in every case where we have found the petition shows sufficient cause, ordered the summons to issue as it would from the circuit court; but, if we think, upon examination, no cause is shown for awarding the summons, it will he denied, as was the practice in this court before the passage of the statute. Where the matter to he litigated concerns public interest, we have uniformly made the writ returnable to the term at which the application is made. Where it is of a mere private nature, the practice" is to make the writ returnable to the succeeding term. In this case we thought the matters set forth in the petition were of such public importance that the writ ought to be made returnable to the present term, and it was accordingly so done. There is, therefore, nothing in the statute or the practice that obtains that makes it imperative that there should be five days service before the writ can be heard in this court, but it must be made returnable at a time not less than five days. The other reason, however, .assigned for .a continuance, namely, that the parties have not all been served, is well taken. The parties to be affected, whose action is to be controlled, are not all before the court, and we are of opinion, until they are all before the court we have no jurisdiction to • hear the case. It will, therefore, be continued for service upon the parties not served. Motion allowed.