Opinion
JANUARY TERM, 1835.
Louisiana. Mandamus. Although no rule to show cause why a mandamus should not issue to the district judge of Louisiana had been granted by the court; the district judge had agreed to appear, as if a rule had been granted by this court, and had been served upon him; and copies of the papers on which the motion for the mandamus was founded, had been served on the district judge and on the parties in the suit in which the mandamus was to operate, during the vacation. The district judge filed an answer, as if the rule had been served on him, and appeared by counsel, waived a formal rule on notice, and stated his readiness to show cause. By the Court. Under such circumstances, there is no necessity for directing a rule to be entered and notice to be given; all the purposes of the rule are accomplished.
THIS was a motion for a mandamus, to be directed to the district judge of the district of Louisiana.
There had not been any rule taken out and served on the district judge to show cause why a mandamus should not issue. Copies of the papers on which the motion was founded, with notice that the same would be made at this term, had been served on the district judge and the parties in the suit pending before him, during the late vacation. The district judge appeared by counsel, and waived any notice of a rule to show cause, and offered to show cause instanter. An objection having been suggested, whether, even by consent on both sides, the rule and service thereof ought to be dispensed with, some discussion took place on the subject between the bench and the bar.
Mr Justice BALDWIN was of opinion, that in a cause of this sort, the court ought not to dispense with the regular course of proceedings, by the granting and service of a rule to show cause.
Mr Chief Justice MARSHALL said, that the grant of a rule to show cause and the service thereof, is a matter in the discretion of the court. The court may, in its discretion, grant an alternative mandamus, if it deems it more conducive to public justice, and to prevent delays. Here all the parties express themselves ready to proceed in the cause. The district judge waives any formal rule and notice, and wishes no delay; and states his readiness now to show cause. Under such circumstances, all the purposes of a rule to show cause and notice are accomplished, and there is no necessity for directing such a rule and notice. The court, therefore, in my opinion, may properly proceed at once to the hearing of the cause, for the purpose of ascertaining whether a mandamus ought or ought not to be awarded.
The other judges concurred in the opinion of the chief justice; and the court directed the motion to come up on the next motion day.