Under our system Courts of Chancery have no supervisory control of a mandatory nature over the proceedings of Courts of law. They may enjoin suitors from prosecuting causes, and executive officers from executing judgments in civil cases, but, as a general rule, they cannot act upon the Court itself and direct its proceedings.
It is somewhat difficult to conceive how a Chancellor could coerce a Circuit Judge to grant and conduct a hew trial in- a common law case, if the latter should prove recalcitrant. Eortunately, the unseemly conflict can arise only in one county and will probably never arise there, but the principle is not affected by present security, and we should be cautions in establishing precedents, which may become mischievous under other conditions.
This Court had occasion to consider this matter very seriousiy in the ease of Leigh v. Armor, 35 Ark, 123, and its members found it very embarrassing to determine how a new trial should be had — whether by directions from the Chancellor to the Circuit Court to reinstate the case upon its docket and conduct a new trial, which is altogether a different thing from an issue sent out of Chancery to be tried for the advice of the Chancellor; or whether it would be better that the Chancellor himself, having acquired jurisdiction by the accident and necessity for relief, should retry the whole merits, with the aid of a jury if required. The difficulty was not then solved, but this Court contented itself with simply declaring that a new trial should be had, if the bill were true, and remitting it to the good sense and discreet consideration of the Circuit Judge and attorneys, to carry out the principal object. The Circuit Judge being himself Chancellor, no conflict could ensue.
The embarrassment and uncertainty of the practice, is a potent argument for confining it to the plainest and most equitable cases, demanding relief from hardships. The occasions for it should be rare, and it ought not to be encouraged.
It does not seem to me that this is a case of unavoida-' ble accident, or that it has such equitable elements as to invoke the exercise of the extraordinary and somewhat undefined power of the Chancellor to direct a new trial. The case of Leigh v. Armour was: Thereby act of Providence the Judge was rendered physically unable to act upon the motion for a new trial. There was no laches, default or mistake of law.
In this case there does not appear to have been anything more than a general misapprehension of the law and proper practice in the case, leading to the defeat of the ultimate appeal intended. No one was prevented by accident or superior force from doing anything, which it appears he intended doing. So far as the record shows the Judge thought it proper to continue the motion, and there is no showing of dissent. All, perhaps, acted under the belief that it might be properly determined at the next term, and would have the effect to suspend the judgment. The Judge must be presumed to have so thought, and the appellant certainly did, since he prosecuted his appeal upon the motion after it was finally overruled. It was simply a mistake of the legal eflect of the proceeding. Chancery does not ordinarily relieve against such mishaps. It would be bad policy to do so. I am not in favor of extending the principle of the case of Leigh v. Armour, but rather to consider it exceptional.
With deference to the views of my associates I think the demurrer was properly sustained, and that the dismissal of the bill was not an erroneous exercise of the judicial discretion of the Chancellor.