The purpose of the applicant, as set out in his petition, is to obtain a writ of mandamus from tbis court, addressed to the honorable judge of the district court, presiding in the case instituted against sheriff David J. Reid, ordering him to fix the case for trial or to show cause to the contrary.
On this application a rule nisi was issued by this court on the 30th day of May, 1907, directing respondent to fix the case for trial, or to show cause to the contrary.
In answer to the rule the respondent avers that he has notified the relator (that the notice is in the record of the case) that the case would be tried at his earliest convenience not to conflict with the duties of his own district, and that this notice was not made part of the motion for a mandamus.
I-Iis honor, the presiding judge, states that the case has been fixed for Monday, the 24th of June, 1907, the earliest date that can be reached by him for the trial of the case.
In matter of the complaint of relator of his unwillingness to fix the case, ,he, in turn, complains of the method or manner followed by the relator in the application to fix the case.
This we merely state and pass as not germane to the issue.
It is sufficient to state at this time, that the case has been fixed, and that it will be called for trial on the day mentioned, and proceedings taken up at that time.
The application has accomplished every purpose asked. The statement of the court in the return suffices to render the fixing of the case certain.
We think it is due to the Honorable Judge, who presides for the time being over the court, not to make a writ of mandamus peremptory when it appears that he has complied with the rule nisi.
For reasons stated the rule nisi is recalled and discharged, the Judge of the District Court having assigned the case for trial on the 24th of this month.