116 US 401 Brown and Anothers

6 S.Ct. 387

116 U.S. 401

29 L.Ed. 676

Ex parte BROWN and another, Petitioners.

Filed January 18, 1886.

J. H. Mitchell, for the motion.


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This motion is denied. According to the petition, the court entertained jurisdiction of the cause, but dismissed it for want of due prosecution; that is to say, because errors had not been assigned in accordance with the rules of practice applicable to the form of the action. This is a judgment which can only be reviewed by writ of error or appeal, as the case may be. Mandamus lies to compel a court to take jurisdiction in a proper case, but not to control its discretion while acting within its jurisdiction. This rule is elementary. Ex parte Morgan, 114 U. S. 174, S. C. 5 Sup. Ct. Rep. 825, and cases cited.