Opinion
No. 4-7417
Opinion delivered June 12, 1944.
MANDAMUS — BY CONSENT. — Where K died intestate and his collateral heirs were sued by the collateral heirs of his wife to whom the property was bequeathed, who declined to bring their action to a hearing in the ordinary way and after the defendants had filed several motions to dismiss for that reason which motions were overruled when petitioners, heirs of K, filed petition for mandamus and it was agreed on appeal that the writ might issue directing and requiring appellants and their counsel to bring the case to a hearing in an orderly way, such writ was granted.
Mandamus to Arkansas Chancery Court, Southern District; Harry T. Wooldridge, Chancellor; writ granted.
John L. Daggett and W. H. Daggett, for appellant.
John W. Moncrief, for appellee.
This is a petition for a writ of mandamus. Petitioners are the collateral heirs at law of Guy Keeney who died intestate in Fort Smith, Arkansas, in 1939, and they are the defendants in a certain action pending in the Arkansas Chancery Court, Southern District, presided over by respondent, as chancellor, wherein the plaintiffs are three of the collateral heirs at law of the late Angie Merritt Keeney, wife of said Guy Keeney. The action was begun by plaintiffs in said court on December 15, 1942, and up to this time, although, after much delay, plaintiffs in said action have taken their testimony by depositions before a stenographer, such depositions have not been transcribed, or if transcribed have not been filed. Several motions of defendants, petitioners here, for dismissal for failure of plaintiffs to take and file their depositions, in accordance with orders of the court so to do, have been overruled. The prayer of the petition for mandamus is that this court direct the respondent to dismiss the action because of the failure of plaintiffs to proceed in an orderly way to bring the case to trial.
On oral argument counsel for the respective parties agreed for this court to award a consent writ of mandamus, to the respondent, directing him to require plaintiffs and their counsel to file their depositions with the clerk of said court on or before June 26, 1944, and, if requested so to do, to issue a rule on the stenographer to compel the transcribing and filing of the depositions for plaintiffs, under penalty of dismissal of the action with prejudice for failure of plaintiffs to file same on or before said date; to require defendants and their counsel to take, have transcribed and filed their depositions in said cause on or before July 24, 1944, under penalty of having said cause submitted to said court for final decision on the testimony of plaintiffs alone; to require plaintiffs to take, transcribe and file any rebuttal testimony they may wish to take on or before July 31, 1944; and to require a submission of the cause to respondent for final decree on or before August 7, 1944.
The clerk will issue the writ as directed herein, and the respondent is directed to tax the costs of this proceeding, as certified by the clerk of this court, against the plaintiffs in the court below.