Barrett v. Circuit Judge ( 1869 )

To compel respondent to set aside a judgment because of illegal notice of trial.

Granted April 21, 1869.

Held, that under Circuit Court Rule No. 10, providing for notice of trial in appeal cases, when a party is absent, to make such notice valid, it must appear by legal proof that the residence of the party cannot be ascertained after diligent inquiry, and that the notice was posted up, in the clerk’s office, for the required period in some conspicuous place, and proof must appear of the place of such posting.

Mandamus is the proper remedy in such a case. Where directed to a legal tribunal in the course of justice it is an exercise of supervisory judicial control, and in the nature of appellate action. The writ should be regarded as directed to the justice officially, and as binding the incumbent whoever he may be. The party sustaining the action complained of, is to ail intents and purposes represented by the judge and is therefore responsible for the costs. There is no authority to impose terms upon the relator in such a case.