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EX PARTE PARKER, 120 U. S. 737 (1887)

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U.S. Supreme Court

Ex Parte Parker, 120 U.S. 737 (1887)

Ex Parte Parker

Argued March 7, 1887

Decided March 21, 1887

120 U.S. 737


A statute of Washington Territory enacts that "a part of several co-parties may appeal or prosecute a writ of error, but in such case they must serve notice thereof upon all the other parties." One of two defendants in a cause served upon the other written notice, entitled in the cause, that he would, on a day therein named, "file a notice of appeal and stay bond, and appeal said cause," and added, "You are herewith requested to join in said appeal." The other defendant answered in writing, "I hereby accept service of the above notice, . . . and decline to join in an appeal in said cause." Held that this was an exact and effectual compliance with the provision of the statute.

A statute of Washington Territory relating to appeals provides that

"In an action by equitable proceedings, tried upon written testimony, the depositions and all papers which were used as evidence arc to be certified up to the supreme court, and shall be so certified not by transcript, but in the original form, but a transcript of a motion, affidavit, or other paper, when it relates to a collateral matter, shall not be certified unless by direction of the appellant."

In an appeal in equity, the appellant requested the clerk to "transmit to the supreme court all the papers filed in this chanroblesvirtualawlibrary

Page 120 U. S. 738

cause except subpoenas as by law provided." The cause had been referred to a referee, who had returned with his report and finding five packages, numbered 1, 2, 3, 4, and 5, with a certificate that it was

"the evidence written down before me and taken in said action, and that the same, with the documentary evidence returned herewith by me into court, constitutes the evidence submitted to and taken by me in said action."

The clerk of the court transmitted these packages to the supreme court with a certificate that

"the letters, papers, and exhibits herewith transmitted and numbered . . . are all the papers, letters, and evidence introduced in said cause before said referee and by him deposited with the clerk of said court,"

and further certified that the transcript on appeal was a

"full, true, and correct transcript of so much of the record . . . as I am by statute and directions of attorneys in said cause required to transmit to the Supreme Court."

Held that the certificates showed that the transcript contained all the evidence introduced by the parties on the trial below, and that the appeal had been duly taken and perfected.

The writ of mandamus properly lies in cases where the inferior court refuses to take jurisdiction where by law it ought so to do, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof, but it will not lie to correct alleged error occurring in the exercise of its judicial discretion while acting within its jurisdiction. In this case, it is ordered that the writ be issued.

This was a petition for a writ of mandamus to the Supreme Court of Washington Territory, directing that court to take jurisdiction of an appeal of which it had declined to take jurisdiction.

At October Term, 188, motion was made for leave to file the petition. Leave was granted, and a motion was submitted for a rule to show cause. The rule issued, and, complete returns not having been made before the end of the term, it was continued. At this term, a motion was made for a peremptory mandamus. The hearing on this motion was continued from time to time until complete returns were made, when the cause was argued. The case is stated in the opinion of the Court. chanroblesvirtualawlibrary

Page 120 U. S. 739

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