Sherman

This is an appeal by defendant from a judgment of the superior court of Sacramento County awarding plaintiff a writ of mandate and from an order denying defendant’s motion for a new trial.

Applications to purchase state lands were made to the register of the state land-office, respectively, by Mrs. Wrinkle and Samuel Levy. These applications were approved, and some two years thereafter, and pending the issuance of patents, this plaintiff filed an application to purchase certain portions of the lands covered by the previous applications. Accompanying his application was a protest directed against the issuance of patents to the first applicants, and a demand that the trial of the contest thus raised be referred to the proper court. Nothing further was done in the premises by plaintiff, and six months thereafter his application and protest were canceled, and patents issued to Wrinkle and Levy. About six months subsequent to this time, plaintiff tendered a three-dollar fee to defendant, and thereupon brought this proceeding for a writ of mandate, asking that the defendant be compelled to certify the contest created by the cross-applications and protest to the superior court of Inyo…