
    No. 9044.
    The State ex rel. E. K. Bryant et al vs N. H. Rightor, Judge of the Civil District Court, etc.
    On an application for a mandamus the ruling of a district judge referring exceptions to the merits, cannot To© reviewed.
    The writ issues to proceed, not to recede: to do, not to undo.
    The judge is vested with a legal discretion and he lias exercised it.
    His action can cause the exceptors no irreparable inynTy,as it can he revised by himself, before the final determination of the suit, or on appeal by this Court, which, if lie have erred, will render such judgment as he aught to have pronounced.
    
      ^ PPLTC'ATION for a Mandamus.
    
      Percy Roberts and .E. E. Motee, for the Relators.
    
      W. 8. Benedict and F. IV. Baker for the Respondent.
   The opinion of the Court was delivered by

Bermudez, O. J.

This is an application for a mamdmnns.

The relators claim that the district judge, instead of either overruling or sustaining certain exceptions filed by them, has referred the same to the merits.

The judge returns, that the exceptions were twofold: Attacking and denying the capacity of the plaintiffs in the suit to stand on judgment and their title to the claim sued upon ; that, after full and fair hearing of the evidence and argument of counsel, believing said exceptions not well founded as far as the capacity of plaintiff to stand in judgment was concerned, hut thinking that the exception, as to the title of plaintiff, though not made out, could more truly, fairly and justly be decided, after hearing the evidence in full upon the merits, and desiring not to prejudice defendant’s rights, or to cut them off from said exceptions, he, (the judge) under the judicial discretion vested in him by law and under and in accord with the practice of his court and of the courts of the State generally, referred said exceptions to the merits to be tried and decided therewith.

This Court is clearly asked to review the ruling of the lower judge, which is claimed as erroneous. It is asked to reverse that ruling and to reinstate the exceptions, or to direct the district judge to do so, and to require him to dismiss or maintain those preliminary defenses.

This cannot be done, on an application for a numda/nms, which, when granted, becomes a mandate to proceed, not to recede ; to do, not to undo. 33 A. 268. The apprehension of tho relators that the ruling of the district judge may work them an irreparable injury, is entirely without foundation.

Tho district judge himself has the power thereafter to reconsider iris interlocutory decree, and also the preliminary defenses; and, were lie to find his ruling erroneous and the exceptions well founded, he can set aside and act on the excejrtions, sustaining or annulling them, as ire might think legal, even after evidence has been received and argument heard on the merits, should he not do so, his ruling referring' to the merits and his subsequent decision, on the same defenses and on the merits, can be brought, by appeal, to this Court, who will then render such judgment as the district judge might to have rendered, should he be found to have erred in making the reference complained of. State ex rel. Phlug vs. Judge Civil District Court, 35 A. 765.

T’he dist’.ict judge says in his return that he has heard evidence and argument of counsel, that, for reasons satisfactory to himself, he has decided that, part of the defense was well founded, but was not ready to’pass on-the other branch and that, in the interest of justice, he thought it preferable to refer the exceptions to the merits.

This shows clearly the exercise of a discretion vested in him bj^ law. It justifies his conduct, although it may not his.ruling which may nevertheless be incorrect and injurious to the interest of the parties. The injury, if any, can be repaired before or after appeal.

The application is refused with costs.  