Horton v. Gill , 5 Indian Terr. 193 ( 1904 )

Clayton, J.

This is an original petition filed in this court by H. B. Horton, praying that a writ of alternative mandamus issue, commanding the Honorable Joseph A. Gill, as judge of the United States Court for the Northern District of the Indian Territory to appear and show cause why a certain cause, entitled “E. B. Frayser vs H. B. Horton,” pending on the law docket in the United States Court at Vinita, in the Northern District of the Indian Territory, should not be transferred to the equity docket of that court.

The facts are that the said Frayser brought his action at law of unlawful detainer in that court against the petitioner, Horton. To the complaint the petitioner, who was the defendant in that suit, filed his answer, in which he set up what he claims to be an equitable defense, and filed his motion to transfer the cause to the equity side of the docket. The court heard the motion, and overruled it, to which exceptions were duly saved. The hearing of the cause was continued to the next term of the court, and this petition was filed here to compel the transfer aforesaid. <

Mandamus cannot be used for the purpose of correcting the errors of a court arising during the progress of the proceedings, any more than it can be used to correct the judgment at the end of the trial. These are all matters for review on appeal or writ of error. Mandamus may be used to compel the judge to act, but cannot, in any wise, control his judgment, either on matters finally submitted to the court or those which collaterally arise during the proceedings. Ex parte Whitney, 13 Pet. (38 U. S.) 404, 10 L. Ed. 221. Here the court heard the motion, and after consideration entered its judgment upon it. The petitioner saved his exceptions. If the court erred, his remedy is by appeal, and not by mandamus.

The petition, therefore, is dismissed.

Raymond, C. J., concurs.