Opinion
Application for a writ of mandate to compel the respondent, a judge of the Superior Court of the county of Santa Clara, to proceed with the trial of an action.
COUNSEL:
Vincent Neale, for Petitioner.
McKisick & Rankin, for Respondent.
JUDGES: In Bank. Ross, J. Myrick, J., McKee, J., Morrison, C. J., and Thornton, J., concurred.
OPINION
ROSS, Judge
In an action in equity, to be tried in the Superior Court of Santa Clara County, certain special issues were framed and submitted to a jury, which returned its findings thereon, claimed by the petitioner here, who was the plaintiff in the action, to have been favorable to him. The court ordered the plaintiff to pay the fees of the jury, amounting to $ 140 , and the fees of the reporter, amounting to [8 P. 856] $ 40, and further ordered that all proceedings be stayed until the making of such payments.
If the court had the power to make such order, it is quite obvious that it should not be compelled by mandamus to proceed with the trial of the cause until the order is complied with. Statutory authority for the action of the court in the particular mentioned is found in section 274 of the Code of Civil Procedure, and in the act approved March 1, 1872, statutes of 1871-72, p. 188.
Writ denied and proceedings dismissed.