Stephen Johnson Field

“ The mandamus is to correct a mistake as to its jurisdiction, committed by the court, and although it is the custom in such cases to direct the writ not merely to the court, but to its judges by name, yet including their names within the writ, except in special cases where disobedience may be apprehended, is at the present day little more than a mere matter of form. ”

“ Section 2140 of the Code can have no proper application to orders which are granted of course, as being matters of right, but only to those matters which may be contested and refused. An appeal from a district court to the supreme court of the territory within the six months allowed by law was not a matter which could be refused at the discretion of the district judge or court. Rights under our system of law and procedure do not rest in the discretionary authority of any officer, judicial or otherwise. ”

“ The only associate justice then in office who now remains on the bench, Mr. Justice LANGFORD, took no part in the decision. The question, therefore, is raised whether under such circumstances the mandamus can issue to the court, constituted as it now is, to reinstate a case dismissed by their predecessors. We do not think the objection is tenable. ”