Dissenting Opinion
Rakestraw, J.It would seem helpful to a consideration of this cause that the proceedings in the court below be reviewed briefly. From the petition for Writ of Mandate and the return filed to it, it appears that the proceedings are as follows:
1. That on November 21, 1960, the Relator filed a suit in the respondent court.
2. That on December 6, 1960, counsel for the defendants in that suit entered their appearance.
3. That at all times relevant to this action there was *403in effect a rule of the local court below which provides in part as follows:
“Rule IX
“(b) A list of civil cases including cases for divorce and separation, except those for drainage and those in which a receiver or commissioner has been appointed, which have never been at issue and in which no entries have been made for more than eleven (11) calendar months, will be posted in the court on the first day of the succeeding term. During the ensuing three-week period either party may obtain an order to retain said case on the docket upon the filing of a written motion praying such order upon grounds deemed sufficient by the Court; and such order retaining said cause will not require the payment of further costs.
“(c) A list of all of the cases not ordered retained pursuant to sub-section (b) of this rule shall be posted during the fourth week of said term, and either party may upon written motion setting forth grounds deemed sufficient by the Court and upon the payment of all accrued costs in the action, obtain an order retaining said cause on the docket. After the expiration of 140 days from the first day of said term, all cases on the list provided in this sub-section and not theretofore ordered retained will be dismissed for want of prosecution at plaintiff’s costs; and said so order will be the final order therein.”
4. That after the entry of the appearance for the defendants, no further orders were made in the case until November 21, 1961.
5. That on November 21, 1961, the case below was included in a list posted pursuant to sub-paragraph (b) of Rule IX.
6. That during the week of December 10 through December 16, 1961, the case below was included on a second list posted on the bulletin board pursuant to sub-section (c) of Rule IX.
7. That no further entries were made in the case below until April 9, 1962.
8. That on April 9, 1962, the court struck the case from the docket pursuant to Rule IX.
9. That the relator (plaintiff in the cause below), filed a motion to reinstate the cause finally on October 10, 1962, which was overruled on July 3, 1963.
*40410. That thereafter, the relator filed a motion to reconsider, and that on October 22, 1963, the respondent court declined to set aside his order of July 3, 1963, and reinstate the cause.
It thus appears from the matters before this court that the relator from November 21, 1960 to October 22, 1963 took no substantial action in the cause below. Their only action was the filing of the complaint and seeking to have the cause reinstated after it had been deleted from the docket because of their inaction.
It has been held many times that Mandate and Prohibition are extraordinary remedies, and that they are equitable in nature.
A person seeking Mandate or Prohibition must have acted promptly and not have delayed unduly seeking his rights. State ex rel. Nineteenth Hole, Inc. v. Marion S. Ct. (1963), 243 Ind. 604, 189 N. E. 2d 421; State ex rel. Hashfield v. Warrick Cir. Ct. (1961), 242 Ind. 318, 178 N. E. 2d 734.
It is also well settled that a person seeking Mandate or Prohibition must show that he has no adequate remedy other than Mandate or Prohibition. Mandate and Prohibition cannot be made substitutes for appeal or for other legitimate legal remedies. State ex rel. Nineteenth Hole, Inc. v. Marion S. Ct., supra; State ex rel. Durham v. Marion Circuit Court (1959), 240 Ind. 132, 162 N. E. 2d 505; State ex rel. Allison v. Crim. Ct. of Mar. Co., etc. (1958), 238 Ind. 190, 149 N. E. 2d 114.
In this case it appears that the relator without explanation allowed a pending suit to remain from November 21, 1960 through October 22, 1963 without taking any positive action to advance the cause. It also appears that on two separate occasions the pending cause was placed on a list posted in the respondent’s court room and that the relator’s counsel was an attorney from the same city in which the respondent court is located and practicing in the respondent court. Nothing is alleged or shown to explain the lack of action or the *405failure to discover the posting of the case on the appropriate list as provided for in the rules of the respondent court.;
It also appears that the relator has two other possible remedies if he is entitled to relief. One of these would be by appeal from the final order which in effect disposes of the case and constitutes a final judgment, another would be by a proceeding under the statute for relief from a judgment entered by surprise, inadvertence, or excusable neglect.
Under the circumstances shown, I would deny the Writ as requested in this cause.
Note. — Reported in 216 N. E. 2d 548.