33 U.S. 588
8 Pet. 588
8 L.Ed. 1054
EX PARTE MARTHA BRADSTREET, IN THE MATTER OF MARTHA
HENRY HUNTINGTON, TENANT.
January Term, 1834
AT the January term 1833 of this court, a mandamus was awarded, on the application of Martha Bradstreet, to the district judge of the United States of the northern district of New York, commanding him to have the records made up in certain cases depending in that court, in which the said Martha Bradstreet was demandant, and to enter judgments thereon, in order to give the demandant the benefit of a writ of error of the supreme court; and also that without delay he should reinstate and proceed to try and adjudge according to the law and right of the several writs of right and the mises therein joined in certain cases depending in that court. 7 Perters 634-650.
Mr Jones, as counsel for the demandant, now moved the court for a mandamus to compel the district judge to permit judgment to be entered, and a writ of seisin awarded upon the verdict of the grand assise, rendered in favour of the said Martha Bradstreet, against the said Henry Huntington, in the district court on the 8th day of February 1834; and to obtain an attachment against the district judge for his prohibiting the demandant from issuing process to assemble the grand assise in each respective cause which is at issue, and which she would otherwise bring to trial at the next stated session of the said district court, to be held at Albany on the second Tuesday of May next: and also for a rule on the said district judge, to show cause why a mandamus should not be issued, &c.
Mr Jones, in support of the motion, filed the affidavits of the demandant and her counsel, setting forth the proceedings in the district court in the cases referred to in the motion; and alleging that the district court had not obeyed the mandamus of this court, but had, in direct opposition to its injunctions, permitted great delay to take place in bringing the cases to a trial, after they had been reinstated in conformity with the order of this court.
Mr Jones contended, that, upon the affidavits, it was manifest that the proceedings of the district court amounted to a contempt of this court; and that the whole purposes which were to be accomplished by the mandamus had, in violation of the commands thereof, been defeated.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
This motion is for an attachment against the judge of the northern district of New York, for a contempt of this court in refusing to obey its mandamus, directing him to reinstate certain suits which had been dismissed from the docket of that court, and to proceed to adjudicate them according to law.
The suits were reinstated and ordered for trial as directed by this court; but delays have taken place so that a verdict has been given in only one of them, and in that judgment has not not yet been rendered.
The motion for the attachment is supported by an affidavit of the party, verified by the counsel, giving, at great length, a history of the proceedings which have taken place in these causes, both before and since the mandamus was awarded. It alleges, that since the causes have been reinstated delays have taken place which are detailed at great length, and are considered as amounting to a contempt of this court, by disregarding its mandamus.
We have only to say, that a judge must exercise his discretion in those intermediate proceedings which take place between the institution and trial of a suit; and if in the performance of this duty he acts oppressively, it is not to this court that application is to be made.
A mandamus, or a rule to show cause why a mandamus should not issue, is asked in the case in which a verdict has been given, for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term, and we understand it is not unusual in the state of New York, for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact, that Judge Conklin should take time till the next term to decide on the motion for a new trial. This court entertains no doubt of his power to grant it.
We do not think that an attachment ought to be awarded, nor do we think that the present state of the case in which a verdict has been rendered, would justify this court in directing a rule to show cause why a mandamus should not be issued.
The motion is dismissed.