
    No. 9058.
    The State ex rel. Joseph Menge vs. N. H. Rightor, Judge Civil District Court, etc.
    A mandamus does not lie to compel a district judge to rescind an order made "by Mm dismissing an appeal “because the surety is not good and solvent, as the law requires, although such surety may he such as meets legal exigencies, and to reinstate the dismissed appeal although the judge may have errecl. Such action on his part cannot be reviewed in a proceeding for a mandamux, and can be considered only in a different proceeding specially provided and sanctioned for such cases.
    ^ JPPLIOATIOX for Mandamus.
    
      Brauglm, Buck & Dinkelspiel and W. 0. Hart for the Relator.
    
      Jas. Wilkinson and Jos. II. Bpearmg for the Respondent.
   The. opinion of the Court was delivered by

Bermudez, U. J.

This is an application for a mamdmius. The relator complains that the district judge has dismissed a suspensive appeal taken by him from a judgment against him, the ruling being made on the ground that the surety furnished is not good and solvent, as the law requires, when in truth and in fact such surety meets all legal exigencies.

The prayer is that a mandamus issue directing the judge to rescind his order of dismissal and to reinstate the suspensive appeal.

It has been repeatedly held that a mandamus does not lie to compel a lower .judge to render' a particular decision or rule in a specified manner.

If the district judge erred as charged, his error cannot be revived in the present proceeding. Tlie relator has mistaken his remedy. He should have formally resorted to another proceeding specially sanctioned for such cases. 21 A. 44, 113, 154.

The relator has prayed for both a mandamus and a prohibition, but has not made the slightest allegation to justify the issuing of the last writ. The averments tend to the granting of a mandamvus. Those required to authorize a prohibition would bo essentially different and contradictory. Iiow can this Court, in the same breath, order a judge to proceed and to abstain from proceeding in relation to the same matter — to do and not to do f

It is, therefore, ordered that the restraining order herein made be rescinded and that this application be dismissed, without prejudice to the right of relator of seeking relief under a different form.  