Carpenter

This is an application for a writ of mandate to he directed to Edward I. Jones, judge of the superior court of the county of San Joaquin, requiring him to set a certain cause pending in said court for trial. The facts upon which the application is based are briefly these: One Bailey was the executor of the estate of C. W. Carpenter, deceased. This petitioner and others filed a petition and contest asking that the probate of the will of deceased be set aside, and that Bailey’s letters testamentary be annulled and vacated. Upon the issues thus made the contestants demanded a jury trial, and upon such trial the jury failed to agree upon a verdict. These contestants thereupon demanded that the cause be placed upon the trial calendar to be set for a second trial. This application the court refused to grant until contestants paid the jury fees of the previous trial, and also the reporter’s fees accruing at that trial. No law has been placed before us in any way justifying the court’s action as based upon "a nonpayment of the reporter’s fees, and under the circumstances we assume the action of the court to that extent unjustified.

*364 To support the action of the court as to the…