Bibb v. Gaston , 146 Ala. 434 ( 1906 )

HARALSON, J.

“Mandamus is not a writ of right, and the granting or denial of an application for mandamus rests very largely within the discretion of the court. —19 Am. & Eng. Ency. of Law (2d Ed.) p. 75.

“Mandamus, being a discretionary writ, will not be granted, when it would work injustice, or introduce confusion or disorder, or where it would not promote substantial. justice.” — Id. 753.

“The writ will not issue, except in extraordinary cases, and never, in any case where it is unnecessary, or where, if issued, it would prove unavailing, fruitless and nugatory.” — Id. 756.

Two wills of the. same testator, L. K. Boultier, one dated the 20th of June, 1905, and the other dated July 17, 1905, were presented for probate. When the one of June 20th, was propounded, a day was set for the hearing, and notice was duly given, and when the latter will was offered for probate, a day was set for the hearing, subsequent to the day set for the first. .

In the will of June 20th testator gave his property to appellant, M D. Bibb, as trustee, and by the latter will he gave it to R. May Griffin.

When the day set for the probating of the will of June 20th came, the court continued the case to the day set for hearing the case of the probate of the will of July 17th, and on that day declined to hear the first, until the second case was disposed of, because, as stated in the petition for mandamus, “there was pending before it (the court) the said application of the said R. May Griffin, for the probate of a will of subsequent date, though this motion was made prior to the taking up of said cause of the said R. May Griffin; that the only cattse and reason for not proceeding in the trial of your petitioner’s case (that of M. D. Bibb) was that a paper writing of subsequent date to the one propounded for probate by petitioner, had been propounded for probate in said court.”

On a contest of the probate of the last will, a verdict and judgment were rendered against the validity of the same, and the proponent appealed the case to this court, where the appeal was pending. The court again refused to proceed to try the case of the probate of the first will, because of said appeal. This application is to require the probate court to proceed to try the case for the probate of the first will.

If the result of the pending appeal and another trial should be to establish the will of the 17th of July, and the court had on motion of the proponent to probate the will of the 20th of June, and the result of that trial had been to probate said will, embarrassing confusion would have resulted, without any profit to any one. The court had a discretion to continiie the case of the earlier will, until that of July 17th wa,s disposed of. It would be difficult to conceive of a more striking instance where the discretion of the court could be more properly exercised in the continuance of a cause. Besides, the fact that the court has the legal discretion,- — -not to be abused, of course, — over the matter of continuance of causes, sometimes it becomes the duty of the court not to proceed with a trial, and of its own motion, even, to suspend proceedings for the time. As was said in Shields v. Alston, 4 Ala. 254, “Where a will is exhibited to the orphans’ court bearing a later date than one which is offered for probate, and contended to be the last will and testament of the testator, it is the duty of the court to require a contestation of the facts, that it may be understandingly determined which so-uld be established.” To proceed with the trial for the contest of the later will, and postpone the trial for the contest of the earlier will, is compelling a contestation of the facts in a case of that kind in as appropriate form as can be suggested.

The precise question we have before us was determined in a well considered case in Illinois, where it was held, — quoting the second headnote which is apt, — “that the. probate court is invested with a reasonable discretion as to advancing or postponing cases, and may properly, in the exercise of such discretion, during the pendency of an appeal from its order refusing to probate a paper purporting to be a last will, stay and postpone the hearing of an application to probate another paper of a prior date claimed as the will of the same person; and the exercise of such discretion, when not abused, will not be interfered with by mandamus.” — People v. Knickerbocker, 114 Ill. 539, 2 N. E. 507, 55 Am. Rep. 879; Commissioners v. Walker, 99 Ala. 587; Territory v. Woodberry, (N. D.) 44 N. W. 1077, and authorities there cited.

. There was certainly no abuse of its discretion by the lower court in postponing consideration of the earlier will case, but its discretion appears to have been well and wisely exercised.

Affirmed.

Weakley, C. J., and Dowdell and Denson, JJ., concur.