dissenting. In my opinion this court has no authority to-fix this case for trial in the district court on Tuesday, eighth April, 1873, because there is no law authorizing this court to fix cases for trial in the district court, and there is' no law giving this court a supervisory control over the action of that court. Besides, according to the letter of the intrusion act no fixing is necessary by any court.
As the writ of mandamus can only be used in aid of the appellate jurisdiction of this court, that jurisdiction can be maintained if the case is tried on any day of the term as well as on Tuesday, the eighth April, 1873.
The law does not require the district judge to fix a particular day for the trial-of this case, and this court ought not by mandamus to command him to do what the law does not require.
The law does not declare that the State, the prominent litigant in intrusion suits, shall forfeit the right of jury trial if not asked for in the petition ; and this court ought not to enforce a forfeiture not prescribed by law.
Any ordinary litigant has the right, at least before issue joined, to-amend his pleadings and pray for a jury or anything else. Why may not the State 1
Because the law officer of the State, the district attorney jpro tem.r neglected or failed to pray for everything he wanted in the petition, is the State to be barred from the common right of every suitor. The right to amend his pleadings before issue joiued'? I think not.
But it is contended that as the judge of his own motion ordered a jury, the State should have accepted it, and having refused it. the State had no right to pray for a special term and for a jury — that this shows that the object of the prayer was purely for delay. The jury called at chambers by the judge without the prayer of either of the litigants and before issue joined, was a jury not convened according to-law and it was not obligatory on either of the litigants to accept it. Therefore no right was lost by refusing it. The charge that the sworn officer of the State, the district attorney pro tem., is merely maneuvering for delay in demanding what is believed to be a legal right is, in-my opinion, gratuitous.
The answer of the judge is that he designated the third March for trial at chambers. No special term was called or held. Therefore there was no fixing of the case at a term of the court.
The question is, had the State the right, before issue joined, to call for a special term and for a jury 1
This was the question presented in the case of Head, 22 An. 54, and this court said : “ The defendant in his answer prayed for a trial by jury, but the judge a quo refused to allow the same. In this we think *153there was error. The act of 1868, No. 156, under which this action was instituted no where deprives the defendant of the general right to-a jury. It is provided by the thirteenth section that ‘ all the cases coming under the provisions of this law may be tried by a judge of the district in chambers, or at a special term called by said judge, on legal notice being given to all parties interested ; and if required by either party the judge may order a special jury to be summoned according to law, to try such case.’ We apprehend the meaning of this section to be that the cause may be tried in chambers if neither party asks for a jury, but if a jury be prayed for it will be necessary when a speedy trial is desired and a regular term is not in session, to appoint a special term and to summon a jury therefor under the power conferred by the last clause of the section.”
In that case the defendant on the day designated for trial at chambers-filed his answer and prayed for a jury. In this case on the day designated for trial in chambers the plaintiff before issue joined, prayed for a special term and a jury. In that case this court considered that the judge erred in not continuing the case and calling a special term. Here the court holds that tlie judge erred in permitting the trial at-chambers to be delayed on account of the application for a special term and a jury.
In the light of the statute as interpreted by this court in the Head case, I do not think the district judge erred in delaying the trial at chambers in consequence of the application for jury, because this-court expressly decided the meaning of the law to be “ that the cause-may be tried in chambers if neither party asks for a jury, but if a jury be prayed for, it will be necessary when a speedy trial is desired and a regular term is not in session, to appoint a special term and summon a jury.”
I believe the court in the Head case properly interpreted the law, and that either party when the case is set for trial at chambers may have-a continuance and require a special term and a jury. The statute provides that the jury “. be summoned according to law.” I understand this to mean that the jury must be convened according to law — that is, the jury must be convened at the general term or a special term of the court; because there is law providing for a jury at such terms, and there is no law providing for a jury at chambers. Therefore a jury summoned at chambers would not be summoned or convened according to law.
I think the district judge committed no error; that under the ruling: in the Head case he properly deferred the trial at chambers, in consequence of the prayer for jury; and finding that the regular term of his-court would arrive before a special term could be convened he did not *154err in delaying the case for trial at the regular term beginning April 7, 1873. Whether or not there will be a failure of a jury at that session remains to be determined when the court opens. If there should be a failure of a jury at said term, however, it will be the duty of the judge to call a special term. Until he fails to do so, the writ of mandamus should not be used against him.
I therefore dissent in this case. •