In re Garrosi

229 F. 363, 143 C.C.A. 483, 1916 U.S. App. LEXIS 1553

Opinions

PUTNAM, Circuit Judge.

[1] This is a petition for mandamus and sundry alternative writs of prohibition and certiorari to' Hon. Peter J. Hamilton, Judge of the District Court for the District of Porto Rico. The real parties in interest have been summoned in and thus made parties to the record. The proceeding to which the petition relates is advancing in due course, and would in due course, ultimately, so far as the record now stands, come to a decree on which an appeal lies to this court. The purpose of the present proceeding is to obtain an order of this court for a judgment to restrain the District Court from further advancing the bill, the motive of this short cut being to save the cost and delay of litigation.

The rule is laid down specifically in Phillips’ United States Supreme Court Practice (5th Ed.) 408. This work is of the highest authority, and'the rule as there laid down has never been questioned by any court. It is there said that to render mandamus a proper remedy “the person applying for it must be without any other specific and legal remedy”; and decisions of the Supreme Court are cited in support of that proposition. This has been said by other authorities at different times, and has never been contravened or qualified so far as we are aware.

This principle applies as a matter of course to all the special writs to which the petition before us refers; and the same fundamental rule applies to all of them, and clearly disposes of the present petition, because it is plain that, in the regular course, the bill to which it relates will ripen into judgment against one of the parties concerned, which other courts will have ample jurisdiction to reverse or affirm.

[2] The present, immediate proposition arises on a motion to dismiss the petition in question. Formerly, as shown by the old editions of Moses on Mandamus, and elsewhere, the methods of dealing with petitions for mandamus were rigid; but for a long time there has been no doubt that the questions of law arising may be disposed of on their face in the summary manner of a motion to dismiss, which was the manner adopted by the learned judge of the District Court and the parties arrayed with him. Consequently, as we have the jurisdiction to grant the motion to dismiss, it is our duty to do so; but we have not undertaken in this case to deal with the question of costs.

We may add in all substantial particulars the case is strictly analogous to the principle involved in Atlantic City Railroad, 164 U. S. 633, 17 Sup. Ct. 208, 41 L. Ed. 579, and we reach the same result as reached there.

The motion to dismiss the petition of Tomas Garrosi and Juana Maria Gonzales, filed on the 19th day of October, 1915, is allowed; and said petition is hereby dismissed, without costs to either party.