Tomkin

— This is an original proceeding here in mandamus, by which petitioner seeks to have the respondent commanded to place on the calendar a certain action pending in his court, entitled Thaddeus Harper v. Thomas Hildreth et al., and to set said action for trial on a day certain, or to appoint a referee therein, and to proceed with the trial of said action. An alternative writ was issued, and upon the filing of respondent’s answer the case was argued and submitted on the petition and answer.

There is no doubt that a superior court may be compelled by mandamus to proceed in regular course to the trial of a cause, when without any legal reason it flatly refuses to do so. But the writ can be used for this purpose only when the action of the lower court is a plain refusal to perform a clear duty which the law specially enjoins; and the party invoking its aid must show a case where the duty of the court to do the thing asked is pure and simple, and unmixed with discretionary power or the exercise of judgment. Such a case the petitioner in the case at bar has not shown.

It appears that the said action of Harper v. Hildreth et al. was commenced in the court of respondent in June, 1884. The…