State ex rel. D'Amico v. Judge of the First City Court

The opinion of the court was delivered by Miller, J. This is an application for a writ of mandamus to direct the judge of the First Oity Oourt to hear witnesses to prove plaintiff’s demand in the suit of D’Amico et al. vs. Canuza. The complaint of relator here, the plaintiff in the lower court, is, that the judge refused to hear the witnesses, on the ground that no default had then been taken. The answer of the respondent judge is, that the rules of the court required a default to be taken before the proof could be administered, and under the rules three days after default before confirmation of the judgment; and he further *366 shows that defendant in the suit has, since the application of plantiff to prove his demand, filed his answer, and it is now too late to hear witnesses and render judgment as of date January 9, the date of plaintiff’s application. There is no power in this court to order the withdrawal of the answer of defendant filed in the lower court. The relator here, will necessarily have to fix the case for trial and prove the demand. It would, therefore, accomplish no purpose were we to hold that the respondent judge should have heard the plaintiff’s witnesses when he offered them. The writ is therefore refused at relator’s cost.