Opinion
No. 4068
Opinion Filed December 5, 1912.
Application of Frank L. Warren for writ of mandamus to John Caruthers, District Judge. Proceeding dismissed.
Warren Miller, for petitioner.
Gibson Thurman, for respondent.
June 12, 1912, there was filed in this court the petition of Frank L. Warren, praying a writ of mandamus be issued to Hon. John Caruthers, as judge of the Ninth judicial district of Oklahoma, requiring him to certify to his disqualification to sit in a cause then pending before him, the title of the same being Warren v. Canard, the judgment in which on appeal in a prior trial from the same court was reversed. Warren v. Canard, 30 Okla. 514, 120 P. 599. In a brief filed November 19, 1912, the respondent asserts that it is not only not true that he is anxious to sit again as judge in the said case, but that no kind of an inducement except a direct command from this court could induce him to sit therein. Under these circumstances a consideration and determination of the issues presented by the parties is not essential. This court, with that statement before it, cannot assume that respondent will do otherwise than to provide means according to law for another judge to sit in the trial of the case. Under these circumstances the issues made by the parties on the record are purely hypothetical, which this court has frequently held it will not determine. The proceeding is therefore, accordingly, dismissed.