
    SMITH v. AUDITOR GENERAL.
    Mandamus — Propriety op Remedy — Determination—Pendency op Other Action.
    Mandamus to compel the auditor general to vacate a certificate of error canceling a tax deed will not be granted pending relator’s appeal from a decree in chancery dismissing a bill praying for the same relief, since the writ could not be granted without determining that the chancery court lacked jurisdiction to grant relief, which question can be determined in the chancery case.
    Mandamus by Charles F. Smith to compel James B. Bradley, auditor general, to vacate a certificate of error.
    
      Submitted February 28, 1908.
    (Calendar No. 22, 676.)
    Writ denied March 17, 1908.
    
      Jerome E. Turner, for relator.
    
      Albert Gf. Day and M. Brown, for respondent.
   Carpenter, J.

February 7, 1907, respondent issued a certificate of error canceling a tax deed whereby he conveyed to relator certain land situated in Muskegon county. Said certificate of error was issued upon the ground that the land was indefinitely and imperfectly described in said tax deed. Relator contends that said land was properly described and asserts that respondent had no authority.to issue the certificate of error canceling the same. Upon this ground he commenced a suit in the circuit court for the county of Muskegon, in chancery, to obtain a decree compelling respondent “to cancel or recall said certificate of error.” Respondent answered this bill. A hearing was had upon pleadings and proof, and a decree rendered in the circuit court dismissing said bill of complaint. From this decree relator appealed to this court and said appeal is now pending therein. After the rendition of said decree in the circuit court, and after giving notice of appeal to this court, relator commenced this proceeding praying for the issuance of a writ of mandamus commanding respondent “to vacate said certificate of error.” And the ground upon which relief is claimed in this case is the same ground upon which relief is asked in the chancery suit. It is quite obvious that if relief can be granted relator in the chancery suit, he is not entitled to the mandamus applied for. It may be said then that we cannot give relator the relief prayed for in this proceeding without determining that the chancery court has no jurisdiction to grant him relief. The question is thus raised: Can we appropriately determine in this proceeding the question relating to the jurisdiction of chancery to grant relator relief? Manifestly not. Relator, by his conduct in continuing to press the chancery suit, insists upon the jurisdiction of that court. We would be obviously disregarding his right, as well as the right of respondent, to have that question determined in that case if we undertake its determination now.

Moreover, there is in relator’s brief no argument whatever in support of the proposition — a proposition essential to his right to obtain relief — that the chancery court lacks jurisdiction. Under these circumstances we think that relator has no right to ask us to determine in this proceeding the question relating to the jurisdiction of the chancery court. That is a question which can be determined in the suit in chancery commenced by him. If we determine it there we are more likely to determine it correctly, for we will then have the aid of arguments not now presented, and certainly this course of conduct is not unjust toward relator, for as herein indicated he cannot complain that that question shall be determined by the court whose jurisdiction he invokes. The writ of mandamus is therefore denied. This denial, however, is without prejudice to a second application should it be determined that the chancery court lacks jurisdiction to afford relief.

Grant, C. J., and Blair, Montgomery, and McAl-VAY, JJ., concurred.  