Opinion
Motion No. 11,392.
Decided May 30, 1934.
Motion — Mandamus — Parties.
A motion for leave to file petition for mandamus against a district judge to compel him to proceed with the trial of a certain cause pending in his court, will be overruled when the defendants in the cause are not made parties to the petition for mandamus.
Original motion for leave to file petition for mandamus to compel the Honorable Walter L. Wray, Judge of the District Court of the Sixty-sixth Judicial District, to proceed to the trial of cause pending in that court styled, Mrs. Janie M. Williams v. S. R. Raby, being No. 16,313 on the docket of said court.
Motion overruled without prejudice.
Wear Wear, of Hillsboro, for relator.
On May 26, 1934, Mrs. Janie L. Williams, as relator, filed a motion for leave to file a petition for mandamus against Hon. Walter L. Wray, Judge of the 66th Judicial District. The mandamus is sought for the purpose of requiring Judge Wray to proceed with the trial of Cause No. 16,313, pending in his Court, in which the relator here is plaintiff and S. R. Raby and A. G. Raby are defendants. Said defendants are not made parties to the petition for mandamus. They are adverse claimants whose rights would be affected by a mandamus directing Judge Wray to proceed to trial. They are obviously necessary parties to this proceeding, and because they have not been made parties the motion for leave to file must be denied. 28 Texas Jurisprudence, p. 627, sec. 62; p. 629, sec. 63; Cullem v. Latimer, 4 Tex. 329; Chappell v. Rogan, 94 Tex. 492; Fain v. McCain, 199 S.W. 889 (writ refused); O'Keefe v. Robison, Comr., 116 Tex. 398, 292 S.W. 854; Scruggs v. McCart, 119 Tex. 464, 32 S.W.2d 823; 38 Corpus Juris, p. 853, sec. 556, and cases in the notes; State v. Thompson, 118 Tenn. 571, 102 S.W. 349; Judge Perth Co. Ct. v. Whaley, 12 U. C. C. P., 552.
The motion for leave to file is overruled without prejudice to relator's right to make necessary parties and again present her cause in this Court.