State ex rel. Nicholson v. Judge of the Civil District Court

The opinion of the Court was delivered by Fenner, J. This is an application for the exercise of our supervisory jurisdiction by making peremptory a writ of mandamus commanding tlie inferior judge to grant a preliminary injunction, which, upon due consideration and for reasons given, he has refused. The petition for the mandamus is.barren of any allegations supporting tlie relief asked. It does not charge tlie respondent judge with any arbitrary, oppressive or illegal conduct, or with failure or refusal, to perform auy duty of his office, nor does it set forth the absence or inadequacy of pther means of relief. The sole qualification of the conduct of the judge is contained in the phrase: “ The court refused the injunction on authorities which your relators believe are not obli gatory and have no application ”—and no other ground for our interference is assigned. We are merely asked to correct an alleged error in the ruling of the judge, and no showing is made justifying the substitution of the extra [843] ordinary remedy by mandamus for the ordinary relief by appeal which the law affords. Tlie articles of the Code of Practice touching the writ of mandamns- and our decision in the case of State ex rel. Murray vs. Judge, 36 Ann-578, sufficiently indicate the exceptional circumstauces under which alone this relief is granted and the necessity of alleging their existence as a prerequisite to the remedy. We have no occasion, therefore, to proceed to the consideration of' the correctness vel non of the judge’s ruling; but see N. 0. vs. Tel. Co., 37 Ann. 571. It is, therefore, ordered that the restraining order herein issued be rescinded and that the application for mandamus be refused at cost of' relators. Rehearing refused.