
    [Civil No. 1620.
    Filed January 4, 1918.]
    [169 Pac. 458.]
    RICHARD V. DEY, Plaintiff, v. A. G. McALISTER, Judge of the Superior Court of Graham County, State of Arizona, Defendant.
    1. Mandamus — When Issued. — The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, and issues when the party has no other legal remedy, and the duty of which performance is sought is clear and indisputable.
    [As to performance of what duties may be compelled by mandamus, see note in 125 Am. St. Rep. 492.]
    2. Mandamus — Refusal to Set Case for Trial — Rights of Litigants. Mandamus will issue where a judge refuses to set a cause for trial, because, in his opinion, there may be another cause pending on appeal which involves the same issues, as litigants are entitled to have their causes orderly determined and with reasonable expedition.
    3. Continuance — Foe What Granted. — That there is a cause pending in the supreme court that may involve the same issues as the immediate action cannot be raised on a motion for continuance, but the court must proceed on the issues as pleaded.
    Original proceeding. Petition for Writ of Mandamus.
    Mr. Ben C. Hill, Mr. R. W. Sprague and Mr. Frank E. Curley, for Plaintiff.
    Mr. A. C. McKillop, Mr. W. R. Chambers and Mr. John H. Campbell, for Defendant.
   FRANKLIN, C. J.

This is an application for a peremptory writ of mandamus to issue from this court, compelling the judge of the superior court of the state of Arizona in and .for Graham county to set a cause for trial. We will consider the scope of the writ applied for as compelling action by the superior court, as well as the judge thereof. To do this will prejudice no right of the defendant, and to do otherwise would permit mere technicality to cause delay.

The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. Paragraph 1553, Civil Code 1913-, When the party seeking the relief has no other legal remedy, and the duty sought to he enforced is clear and indisputable, the writ ought to issue.

It appears that a certain cause, wherein Richard V. Déy is plaintiff, and Laurel Canon Mining Company, a corporation, ¡ J. A. Willis, C. H. Hodge, Charles H. Tanner, E. J. Van Dine, C. E. McBeth, Arthur Crowley, Ed Luxton, J. T. Vinyard, H. E. Pidler, and A1 Davis, individually and as copartners doing business under the name of Laurel Canon Leasing Association, are the defendants, is pending in said superior court, ready for trial upon issues of both law and fact; that defendant refuses to take any action whatever in the matter so pending in said court until such time as the supreme court of Arizona shall render its decision in a certain cause appealed from said superior court. Litigants are entitled to have their causes determined orderly and with reasonable expedition. The trial judge is not justified in an arbitrary refusal to proceed with the timely determination of matters merely because, in his opinion, there may be another cause pending and undetermined on appeal which involves the same issues.

Such an issue, when properly raised, may be judicially determined; but such an issue cannot be raised, nor can it be judicially determined, on motion for a continuance. Whatever may be the status in this respect of the cause pending in the superior court for trial, such matters may be determined on the issues made by the plea in abatement which has been interposed. Plaintiff cannot be deprived of his right to have his cause heard upon the issues made by the pleadings by the unwarranted action of the court in continuing the same and refusing to decide the issues presented for decision. The writ to issue will not control the judgment of the trial court in the least degree, but its purpose will be to direct that those things required by law be done, that the court may proceed to its judgment upon the issues raised.

The peremptory writ will issue, directing the trial court to proceed to a hearing and determination of the issues made by the pleadings in said cause, at the earliest time consistent with the orderly and usual disposition of such matters and the practice of the trial court.

CUNNINGHAM and ROSS, JJ., concur.  