
    State, ex rel. Hiram Chase, relator, v. Guy T. Graves, District Judge, respondent.
    Filed February 27, 1923.
    No. 23170.
    Mandamus: Denial of Writ. “Although delay in applying for a writ of mandamus is not an absolute bar, it may be sufficient ground, in the discretion of the court, for denying the writ.” State v. Holmes, 3 Neb. (Unof.) 183.
    Original proceeding in mandamus to compel respondent, as district judge, to abate a suit to partition land.
    
      Writ denied.
    
    
      Hiram, Chase and A. R. Oleson, for relator.
    
      J. A. Singlums, contra.
    
    Heard before Morrissey, C. J., Letton, Rose and Dean, JJ., Raper, District Judge.
   Per Curiam

This; is an original application for a peremptory writ "of mandamus to compel the judge of the district court for Thurston county to abate an election to partition a tract of land. Relator claims to be the owner of the land in controversy and insists that plaintiff in the partition suit should be required to test his claim of title in an action at law wherein the right of relator to a jury trial will be protected. Respondent filed herein an answer in which the proceedings in the partition suit are pleaded in detail. The issues are submitted to the court for judgment on the pleadings.

Relator is not entitled to a writ. Mandamus is not in every instance demandable as a matter of right. The court in many cases may rely on its own discretion in determining whether a writ should be issued. An unreasonable, delay resulting in prejudice to a party to.be affected by the writ may be a sufficient ground for denying it. State v. Holmes, 3 Neb. (Unof.) 183.

If relator was entitled to a writ of mandamus abating the partition suit, the right existed when the district court denied the abatement. Instead of demanding the writ at the time, relator filed answers in the partition suit, participated in the trial, awaited judgment on the issues, permitted the land to be sold and the sale to be confirmed. He did not apply for mandamus until after plaintiff in the partition suit had borrowed money on the strength of the title acquired at the judicial sale and until after the district court had distributed the proceeds thereof. He permitted the time for an appeal to expire Avithout superseding the judgment in the partition suit or attempting to have it reviewed. These are circumstances under Avhich a court may in the exercise of judicial discretion refuse to allow á writ of mandamus Avithout inquiring into the merits.

Writ denied.  