Ex parte Whitney/Opinion of the Court

by Joseph Story

United States Supreme Court

38 U.S. 404

Ex parte Whitney

This is the case of a motion made on behalf of Myra Clarke Whitney, for a mandamus to the Circuit Court of the Eastern district of Louisiana. The petition on which the motion is founded states that a bill in equity is now pending in the said Circuit Court, in which the petitioner is plaintiff, against Richard Relf and others, defendants; that it is understood to be the settled determination of the district judge not to suffer chancery practice to prevail in the Circuit Court; that her right to proceed in her suit has been denied, until she shall cause copies of her bill in the French language to be served upon the defendants or some of them, and until she shall file documents, which are not made exhibits in the cause, and then that all further proceedings in the cause shall be in conformity with the existing practice of the Court, which existing practice is understood to mean the practice prevailing in the Court in civil cases generally, in disregard of the rules established by the Supreme Court to be observed in chancery cases. The prayer of the petition is for a mandamus in the nature of a writ of procedendo, to compel the Court to proceed according to chancery practice, to award an attachment, and compel Relf to answer her bill, and to suffer the petitioner in all things to proceed in the cause in such manner as the constitution and laws of the United States, and the principles and usages in equity will authorize. A copy of the bill, and the orders and proceedings of the district judge thereon, are presented with the petition.

That it is the duty of the Circuit Court to proceed in this suit according to the rules prescribed by the Supreme Court for proceedings in equity causes at the February term thereof, A. D. 1822, can admit of no doubt. That the proceedings of the district judge, and the orders made by him in the cause, which are complained of, are not in conformity with those rules, and with chancery practice, can admit of as little doubt. But the question before us is not as to the regularity and propriety of those proceedings, but whether the case before us is one in which a mandamus ought to issue. And we are of opinion that it is not such a case. The district judge is proceeding in the cause, however irregular that proceeding may be deemed; and the appropriate redress, if any, is to be obtained by an appeal after the final decree shall be had in the cause. A writ of mandamus is not the appropriate remedy for any orders which may be made in a cause by a judge in the exercise of his authority; although they may seem to bear harshly or oppressively upon the party. The remedy in such cases must be sought in some other form.

The motion for the mandamus is therefore denied.

On petition for a mandamus or for a rule to show cause why such writ should not issue requiring the judges of the ninth judicial circuit to proceed in this cause, according to the rules of equity. On consideration of the motion made in this cause by Mr. Jones, on a prior day of the present term of this Court, to wit, on Saturday, the 26th day of January last, and of the argument of counsel thereupon had, it is now here ordered, adjudged, and decreed by this Court, that the said motion be and the same is hereby overruled.

Notes