Opinion
36953
October 12, 1935
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Chinn and Eggleston, JJ.
MANDAMUS — Exercise of Judicial Discretion Is Not Reviewable by Mandamus — Case at Bar. — In the instant case, a petition for a writ of mandamus, on the ground that the lower court declined to hear the case on the merits, the Supreme Court of Appeals was of opinion that the trial court took jurisdiction of the matter and exercised its discretion in applying and construing the statutes. Under the circumstances the soundness of its judicial discretion could not be raised by a petition for a writ of mandamus, regardless of whether or not the exercise of such discretion was erroneous.
Original application for a mandamus.
Mandamus denied.
George E. Allen and W. Worth Smith, Jr., for the petitioners.
F. M. Chichester, C. O'Conor Goolrick and W. Marshall King, for the respondent.
The basis of the petition for a writ of mandamus is that the lower court declined to hear the case on the merits.
We are of opinion that the trial court took jurisdiction of the matter and exercised its discretion in applying and construing the statutes. Under the circumstances the soundness of its judicial discretion cannot be raised by a petition for a writ of mandamus, regardless of whether or not the exercise of such discretion was erroneous.
The petitioners' only remedy, under the peculiar circumstances of this case, would ordinarily be by an appeal, but an appeal is denied by the express terms of the statute, Code, section 268.
The writ of mandamus is denied.