Page:North Dakota Reports (vol. 3).pdf/84

 for a new trial, which was alleged to be pending before him for decision. The alternative writ was quashed, and proceedings dismissed.

Ball & Watson and John C. Bullitt, Jr., for plaintiff.

S. L. Glaspell and E. W. Camp, for defendant.

Corliss, C. J. On petition of the relator, an alternative writ of mandamus was issued directing the defendant to take up and decide a motion for a new trial, which it was alleged in the petition was before him for decision, but which it was averred he refused to determine. On the hearing in this court, the defendant filed his answer to the alternative writ, and, an issue thus being formed, it was stipulated in open court that the court might treat the petition, answer, and affidavit as evidence, and determine the questions upon this record without further proof. It lies wholly beyond our province to govern by the writ of mandamus the exercise of judicial discretion, nor can we use it as a procedure to correct errors in a case in which the judge or court has not refused to act, but has committed some mistake. Nonaction is the basis of the writ, provided a duty to act is established. It is, urged in this case that the defendant has not refused to entertain and decide a motion for a new trial, for the reason that there is not pending before him any such motion for decision. If this fact be true, the alternative writ must be quashed. We are satisfied it is true. It appears to be undisputed that a notice of motion for a new trial was duly served upon the counsel for the plaintiff in the action by council for the defendant in such action. The defendant therein is relator in this proceeding. It further appears that on the day and at the place specified in the notice, counsel for defendant in the action appeared before the District Judge, but that no one appeared for the plaintiff. On that day the motion was not argued, and the judge indorsed upon the papers a statement that the hearing of the motion was continued from that day (September 12th, 1889,) to September 21st, 1889. On the last named day no one representing either party appeared before the judge, nor does anything appear to have been done thereafter