Ex parte Bradstreet (33 U.S. 588)/Opinion of the Court

This motion is for an attachment against the judge of the northern district of New York, for a contempt of this court in refusing to obey its mandamus, directing him to reinstate certain suits which had been dismissed from the docket of that court, and to proceed to adjudicate them according to law.

The suits were reinstated and ordered for trial as directed by this court; but delays have taken place so that a verdict has been given in only one of them, and in that judgment has not not yet been rendered.

The motion for the attachment is supported by an affidavit of the party, verified by the counsel, giving, at great length, a history of the proceedings which have taken place in these causes, both before and since the mandamus was awarded. It alleges, that since the causes have been reinstated delays have taken place which are detailed at great length, and are considered as amounting to a contempt of this court, by disregarding its mandamus.

We have only to say, that a judge must exercise his discretion in those intermediate proceedings which take place between the institution and trial of a suit; and if in the performance of this duty he acts oppressively, it is not to this court that application is to be made.

A mandamus, or a rule to show cause why a mandamus should not issue, is asked in the case in which a verdict has been given, for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term, and we understand it is not unusual in the state of New York, for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact, that Judge Conklin should take time till the next term to decide on the motion for a new trial. This court entertains no doubt of his power to grant it.

We do not think that an attachment ought to be awarded, nor do we think that the present state of the case in which a verdict has been rendered, would justify this court in directing a rule to show cause why a mandamus should not be issued.

The motion is dismissed.