(- Tex. 207 S. W. 897.) der had been rendered granting a any cause, either party may make new trial, to set aside such order, as out a written statement of the facts it would include the action of the given in evidence on the trial, and court in granting a new trial. The submit the same to the opposite court possessed the same control party, or his attorney, for inspecover the order as over the final tion,' etc. It is also provided by an judgment, and there is no essential act of the twenty-eighth legislature difference in the limitations im- that, 'by an order entered during posed in each case, by the expiration the term, the court may authorize a of the term, on the exercise of such statement of the facts to be made control. The duty of the court to up in vacation, within twenty days correct error or injustice in its pre- after the adjournment of the term.' vious action was the same, whether Laws 28th Leg. 32. It is true that, the error or injustice inhered in the without such order, no statement of final judgment, or in steps leading facts can be made after an adjournthereto, or in the award of the new ment of the term of the court at trial.

which the trial is concluded; but The decisions of this court fur- the phrase, 'after the trial,' denotnish no warrant for holding that ing the time when the statement the trial of this case was concluded may be made, is broad enough to on June 2, 1917. Not only did the embrace the entry of the judgment presiding judge consent to consider nunc pro tunc as a part of the trial, à motion for rehearing immediately justifying the court in making and after announcing the award of the certifying to the statement of facts new trial, and not only was the mo- after judgment was actually ention for rehearing forthwith and on tered. Hill v. State, 41 Tex. 255; the same day filed, but the record Sabine & E. T. R. Co. v. Joachimi, shows that no final judgment on 58 Tex. 454; Jenks v. State, 39 Ind. the verdict was entered until the

1.” Palmo v. S. W. Slayden & Co. 5th day of October, 1917. Had it 100 Tex. 15, 92 S. W. 797. not been decided, it would seem

The case of Hill v. State, supra, clear that the district court could decides that "the trial may well be not intend to close an extension of held incomplete una term ordered for the express pur- til all the issues of Trial-when pose of making “a full and com- law as well as of plete conclusion" of a pending trial fact have been determined, and the before the entry of final judgment. final judgment entered.” However, when the question was The court of appeals had asked presented to this court as to wheth- the question, “Does the trial emer a trial had been concluded prior brace the final judgment?” and had to the entry nunc pro tunc of final answered: “We think so, unquesjudgment, in order to determine tionably. The trial has not termiwhether a statement of facts had nated until the final judgment has been filed within the prescribed been entered and the sentence protime after the adjournment of the nounced.” Mapes v. State, 13 Tex. term at which the trial was had, it App. 91. was answered in the negative. The The supreme court of California opinion, by Chief Justice Brown, likewise concluded that “until the declares: “Plaintiff in error con- decision itself has been entered in tends that the trial court had no the minutes, or reduced to writing authority, after the adjournment of by the judge and signed by him and the term at which the trial was had, filed with the clerk, the case has not to make up a statement of facts been tried to a legal intent.” Hastproved at the hearing. Article ings v. Hastings, 31 Cal. 98. 1379, Revised Statutes, contains Giviry the order on defendant's this provision: 'After the trial of motion the benefit of the presump

of entering orders.

tion always indulged, in the absence er another trial, be manifestly

of anything to the tedious, but such remedy would also Evidence-presumption-order contrary, that

that it be inadequate; for it is the very was regularly and essence of defend

Judgmentlawfully made, we ant's right that it is inality on

rights. would be required to presume, if entitled not to have necessary to uphold same, that, be- to respond further to plaintiff's ing dated the same day as the order cause of action than by payment for the entry of the judgment, it of his judgment. Justice Ram was rendered prior thereto. Winder

sey, in speaking for the court v. Winder, 86 Neb. 496, 497, 125 N. in Wright v. Swayne, 104 Tex. 444, W. 1095; Skinner v. Roberts, 92 Ga. 140 S. W. 222, Ann. Cas. 1914B, 366, 17 S. E. 353; Forrer v. Coff- 288, said: "If the court should wil- . man, 23 Gratt. 878; Gammage v.

fully refuse to execute its own judgMoore, 42 Tex. 170. And we could not say that, being rendered prior and effect, we would have the au

ments according to their true intent to the entry of final judgment, it failed to antedate the full and com

thority and it would be our duty to plete conclusion of the trial. Until

direct it to proceed to execute the the trial was fully and completely judgment and sentence of the law." concluded, the extension of the term

But it is insisted that since article had not expired by the unequivocal 1595, Rev. Stat., confers on our terms of the order.

courts of civil appeals, or any judge We conclude that, on the facts

thereof, in vacation, original jurisshown by this record, the extension

diction to compel a district judge to of the January, 1917, term had not

proceed to trial in any cause, and expired when the court, on October

since, in the exercise of that juris

diction a 5, 1917, vacated the order for a new

mandamus has been trial, and hence the final judgment

awarded by the court of civil apon the verdict of the jury is in full peals of the fifth district, commandforce and effect.

ing the district judge to try this And we have no doubt that the

cause, we are bound by that award. defendant is entitled to enforce by

Section 3 of article 5 of the Con

stitution authorized the legislature mandamus his clear legal right to have the reinstated judgment re

to “confer original jurisdiction on spected and enforced. It is no

the supreme court, to issue writs of sound objection to the award of

quo warranto and mandamus in the mandamus that the defendant

such cases as may be specified, exmight finally secure

cept as against the governor of the Mandamusa review of an ad

state.” Under that authority the judgment- verse judgment fol- legislature has conferred on this remedy by appeal.

lowing a retrial, by court original jurisdiction to issue

means of appeal to writs of mandamus, "agreeable to the court of civil appeals and writ the principles of law regulating of error to the supreme court. For such writs, against any district it has been the law of Texas since judge or court of civil appeals or Bradley v. McCrabb, Dallam (Tex.) judge of the court of civil appeals, 507, that the writ of mandamus or officer of the state government, “will not only issue, in cases where except the governor of the state.” the party, having a specific legal Vernon's Anno. Civ. Stat. Supp. right, has no other legal operative 1918, art. 1526, Rev. Stat. . remedy, but, where the other modes It is inconceivable, in view of the of redress are inadequate or tedious, express language of this article and the writ will be awarded." Not

the respective jurisdictions of the only would the remedy to defend- supreme court and of the courts ant of appeal and writ of error, aft- for civil appeals, that it was

to enforce

supreme court.

(- T'ex. —, 207 8. W. 897.) ever intended by the legislature that dicial district, in cause No. 22,277B,

this court should styled H. L. Collier v. Gulf, ColoMandamuspower of

be precluded from rado, & Santa Fe Railway Com

granting full relief pany, and to proceed no further to one whom it found entitled to

with a new trial of said cause so the writ of mandamus, under the long as said judgment remains unlaw governing that writ, by reason reversed. of a contrary opinion of the court of civil appeals. While the acts of those courts, under the authority

NOTE. conferred by article 1595, are entitled to, and will always receive, The court, in the reported case our utmost consideration, they can- (GULF, C. & S. F. R. Co. v. MUSE, ante, not control the exercise of this

613), recognized, at least by implicacourt's original jurisdiction; and, tion, the rule that mandamus will not of course, when a judgment is pro- ordinarily lie to compel an inferior nounced in the exercise of that jurisdictida, all writs necessary for

court to act, if the complaining litiits enforcement may be issued.

gant has a speedy and adequate remPickle v. McCall, 86 Tex. 212, 24

edy by appeal or writ of error, but S. W. 265; Hovey v. Shepherd, 105

holds that the right of appeal, after a Tex. 237, 147 S. W. 224.

new trial and verdict, is not adequate It is, therefore, ordered that the

where the error committed is the clerk of this court issue the writ of granting of the new trial. The quesmandamus, directed to the respond- tion as to inadequacy of appeal or writ ent, commanding him to enforce the of error as affecting right to mandafinal judgment heretofore entered mus to inferior court, is discussed in on the minutes of the district court the annotation following KETCHUM of Dallas county, forty-fourth ju- COAL Co. v. DISTRICT CT. post, p. 632.

KETCHUM COAL COMPANY

V.
DISTRICT COURT OF CARBON COUNTY et al.

Utah Supreme Court - August 22, 1916.

(48 Utah, 342, 159 Pac. 737.)

Mandamus effect of remedy by appeal.

1. To warrant the issuance of a writ of mandamus to compel action by a court there must be lack of adequate remedy by appeal.

[See note on this question beginning on page 632.] Appeal reasons for decision

ef. which is sought to be compelled must fect.

be clear, and the legal duty to do the 2. The reasons given by a court for act demanded on the part of the court dismissing an action are not control- must be equally clear. ling in a reviewing court where the

[See 18 R. C. L. 296.] only question is whether or not the dismissal can be sustained in law.

- to compel taking of jurisdiction. [See 2 R. C. L. 189.]

4. Mandamus lies to compel a court Mandamus – to compel action by

to take jurisdiction of a cause and court when lies.

proceed to hear and determine it, 3. Where mandamus is sought to where the court, without legal authorcompel action on the part of a court, ity therefor, refuses jurisdiction. [See the legal right to the particular action note, ante, p. 582).

- to compel judgment.

-purpose of proceeding. 5. Where a court has heard a cause 12. Condemnation proceedings were and made its findings, mandamus lies conceived and created so that the title to compel it to enter judgment.

or ownership of real property which [See 18 R. C. L. 305.]

is claimed and needed for some public - to enforce judgment.

use may be transferred from one per6. Mandamus lies to compel a court

son, natural or artificial, to another, to enforce its own judgment.

against the will of the owner. [See 18 R. C. L. 306.]

[See 10 R. C. L. 14.] - refusal of jurisdiction.

- admission of title of condemnor. 7. Mandamus lies to compel a court

13. If the condemnor claims ownerto proceed when, through mere mis

ship in himself, the condemnee may take of law, it declines to take juris

admit the claim, and the condemnor is diction, and for that reason refuses to

then entitled to judgment upon the proceed and try the case, or refuses merits, and the condemnee is entitled to hear and determine the issues, since

to go hence with his costs. there is not an adequate remedy by

[See 10 R. C. L. 193, 194.] appeal.

- adverse claim dismissal of suit. [See 18 R. C. L. 295, 296.]

14. A condemnee who claims title to Judgment — condemnation proceed- the strip sought, and demands damings effect.

ages therefor, cannot claim to be dis8. The entry by a court of an order

missed from the proceedings because of condemnation authorizing the taking

the condemnor sets up some adverse possession of the real property sought

claim to the property. settles the fact that there is a legal - subsequent acquisition of title. right to condemn, and that the con- 15. A condemnor, who, after institudemnation is for a public use.

tion of the proceedings, acquires an [See 10 R. C. L. 14, 15.]

outstanding title, may set that fact Eminent domain jurisdiction ac

up by supplemental pleadings without tion to quiet title.

affecting his right to maintain the ac. 9. In states where there is but one

tion. form of civil action, and law and equity - right to dispute title. may be administered in the same ac- 16. One seeking to condemn proption, and condemnation proceedings erty for public use, who does not asare brought in courts of general juris- sert title or ownership in the land diction, the court does not lose juris- sought, cannot ordinarily dispute the diction of a condemnation proceeding title or ownership of the condemnee. by the fact that the petitioner acquires Appeal review of dismissal of acan adverse title to the property, so that tion. the action becomes one merely to quiet 17. A court ordinarily acts judicialtitle.

ly in dismissing an action or comJury — condemnation proceedings. plaint, and, in case it errs, such error 10. If a question of title arising be

may be reviewed on appeal, after the tween condemnor and condemnee in a

action is brought to final judgment. condemnation proceeding is equitable,

[See 2 R. C. L. 42, 186; 9 R. C. L.

215.] neither party is, as matter of right entitled to a jury trial.

Mandamus — to compel hearing of ac[See 10 R. C. L. 187, 188.]

tion.

18. The dismissal of a condemnaEminent domain jury trial title and damages.

tion proceeding upon the assertion by

the condemnor of an adverse title, by 11. If a question of title arising be

a court which has jurisdiction to try tween condemnor and condemnee in a the issue presented, is a refusal to condemnation proceeding is legal, all hear and determine the issues prequestions, whether in regard to title sented, which may be corrected by manor damages, may be tried and sub- damus. mitted at the same time to the jury [See 18 R. C. L. 295.] that is impaneled in the case, and the - remedy by appeal — sufficiency. jury must be instructed that the dam

19. Where appeal does not lie until ages must be apportioned in accordance final judgment is entered between all with their findings respecting the title. the parties to the action, there is no [See 10 R. C. L. 187 et seq.]

remedy by appeal which will defeat

(48 Utah, 342, 159 Pac. 737.) the issuance of a mandamus, where data, correspondence, telegraphic or the court dismisses one of the defend- otherwise, original, carbon, or letter ants from a condemnation proceeding press copies thereof, and all bonds in because of an issue of adverse title possession of and under control of dewhich arises between him and the con- fendant, is too sweeping and indefinite, demnor,

and should be denied. [See 18 R. C. L. 297, 298.]

[See 9 R. C. L. 171, 172.] Discovery - ordering inspection of Mandamus to compel allowance of paper.

inspection. 20. Under the Utah statute, the 22. Mandamus is not the proper court has power to permit an inspec- remedy to compel a court to grant an tion by one party to a cause, of all order for inspection of books and papapers in possession of the other par- pers in possession of the adverse ty, so far as necessary to a full dis- party. closure and development of all rele- [See 18 R. C. L. 297, 298.] vant and material facts in the case.

Appeal — refusal of inspection. [See 9 R. C. L. 165, 166, 171.]

23. Error in granting or refusing inform of motion indefinite. spection of books and papers in pog21. A motion in a condemnation pro- session of an adverse party may be ceeding against a corporation for in- corrected by appeal, after final judgspection of all books, contracts, reso- ment upon exceptions reserved to the lutions, mortgages, deeds of trust, court's rulings. documents, papers, memoranda and [See 9 R. C. L. 188.]

APPLICATION by petitioner for a writ of mandamus to compel the defendant judge to vacate an order or judgment dismissing the defendant Coal Company from a certain action brought against it and other defendants by petitioner, and to reinstate said company as party defendant in such action, and proceed to trial against all of the defendants. Peremptory writ issued.

The facts are stated in the opinion of the court. Messrs. Boyd, DeVine, & Eccles and be taken, but "an issue of title may be Walton & Walton, for petitioner: made and decided if necessary."

Even had plaintiff alleged that the 2 Lewis, Em. Dom. 3d ed. § 659; Mildefendant Coal Company was the own- waukee & N. R. Co. v. Strange, 63 Wis. er of the strip in question, and though 178, 23 N. W. 432; Geneva v. Henson, it were estopped to deny title to such 195 N. Y. 447, 88 N. E. 1104; Leavitt tract, it would by no authority be dis- v. School Dist. 78 Me. 574, 7 Atl. 600. entitled to try titles with the company Messrs. Dickson, Ellis, Ellis, & as to the remaining lands.

Schulder and Van Cott, Allison, & Chicago & M. Electric R. Co. v. Riter, for defendants : Diver, 213 Ill. 26, 72 N. E. 758; Illinois Petitioner is not entitled to a writ C. R. Co. v. Roskemmer, 264 Ill. 103, of mandamus, even though the trial 105 N. E. 695.

court erred in dismissing the Coal It is proper for the condemnor, Company from the case, with the expending the trial, to amend his plead- ception of the trivial triangle. ings to allege want of title in a con- High, Extr. Leg. Rem. $$ 149 et seq.; demnee.

Kyrimes v. Kyrimes, 45 Utah, 168, 143 Wilcox v. St. Paul & N. P. R. Co. 35 Pac. 232; State v. Booth, 21 Utah, 88, Minn. 439, 29 N. W. 148.

59 Pac. 553; Civic Federation v. Salt In order for the condemnor to try Lake County, 22 Utah, 6, 61 Pac. 222; titles with a person claiming damages, Merrill, Mandamus, §_201; Re Key, the condemnor should plead the same. 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct.

Gerrard v. Omaha, N. & B. H. R. Co. Rep. 624; Ex parte Baltimore & 0. R. 14 Neb. 270, 15 N. W. 231; Dietrichs Co. 108 U. S. 566, 27 L. ed. 812, 2 Sup. v. Lincoln & N. W. R. Co. 14 Neb. 355, Ct. Rep. 876;

American Constr. Co. v. 15 N. W. 728.

Jacksonville, T. & K. W. R. Co. 148 U. Ordinarily, issues of title do not S. 372, 37 L. ed. 486, 13 Sup. Ct. Rep. arise between plaintiff and defendant 758; Ex parte Des Moines & M. R. Co. in condemnation proceedings, with re- 103 U. S. 794, 26 L. ed. 461; 26 Cyc. spect to the particular land sought to 173, 206; Benson v. Ritchie, 44 Utah,