Electric Park Amusement Co. v. Wayne Circuit Judge

Hooker, J. (after stating the facts). The writ of mandamus is never issued unless to enforce a clear legal right and in furtherance of justice. There is abundant reason why these relators are not entitled to it. If there was any just reason for the filing of said plea (which we do not intimate), it was removed by the acceptance of the resignation and appointment of a new trustee a few days later. Both parties thereafter allowed the cause to rest, and the court might well treat the plea as waived, and strike it from the files upon the showing made. If the new trustee is not already before the court, doubtless complainant will see that it is brought in as a defendant. It would be unjust and inequitable, after the delay that has been unnecessarily occasioned, to grant this writ. People, ex rel. Board of Water Com'rs, v. East Saginaw Common Council, 33 Mich. 164. [643] ‘ ‘ Mandamus is a discretionary writ, and will be allowed only in furtherance of justice and upon a proper case presented.” Hale v. Risley, 69 Mich. 596. “ Judicial discretion is always involved in mandamus cases concerning the relief as well as other questions.” People, ex rel. Ayres, v. Board of State Auditors, 42 Mich. 422. See, also, Lamphere v. Grand Lodge A. O. U. W., 47 Mich. 429. “The writ of mandamus is not one of right.” Durand v. Saginaw Circuit Judge, 76 Mich. 624. “The writ of mandamus is a discretionary one, and will not be issued in all cases, even where a prima facie right to relief is shown; but regard will be had to the exigency which calls for an exercise of such discretion,, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing upon the particular case.” Tennant v. Crocker, 85 Mich. 328. “ The writ of mandamus is a discretionary writ, and will not be granted to accomplish a confessedly illegal purpose, even though the officer against whom it is invoked is charged with an express duty under the statute.” Board of Sup'rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386. See, also, Citizens’ Life-Ins. Co. v. Commissioner of Insurance, 128 Mich. 85. “ The issuance of a writ of mandamus is a matter of discretion, and not a matter of right, and the writ should not issue until it appears that justice requires it.” MacKinnon v. Auditor General, 130 Mich. 552. Where, on an application for mandamus to compel the trial court to allow defendant in an injunction suit his costs against complainant, whose bill was dismissed for default of service of a copy thereof on defendant’s counsel, it appealed' from the trial court’s return that the denial of costs was justified, under the rule that mandamus is a discretionary writ, and will not be granted unless abstract justice requires it, that the court did not follow the usual [644] course as to costs is no ground for granting the writ. O'Brien v. Wayne Circuit Judge, 131 Mich. 67. “Mandamus is a discretionary writ, and should not issue when it will work an injustice.” George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511. In what has been said we do not mean to imply that this court will attempt to oversee and direct the nisi prius court in its pleading and practice at interlocutory stages, or that there is not an adequate remedy by appeal. An order to show cause is denied. Grant, Ostrander, Moore, Brooke, and McAlvay, JJ., concurred.