(concurring).
I think that a writ of mandamus may properly issue to compel a trial judge to proceed to the trial of a cause of action when he refuses to do so on the erroneous assumption that as a matter of law he has no jurisdiction. The rule applies where the trial court erroneously dismisses a cause of action as to one of several defendants for lack of jurisdiction, if the complaining party has no adequate remedy by appeal. Justice Young has cited authorities and there is no need for me to name them again.
The record now before us presents such a case. Relator as plaintiff sued several defendants, one of whom is Morris Her-manos, S. A., of the Republic of Mexico. The trial court declined to give relator a trial on the merits as to defendant Morris Hermanos, S. A., but instead dismissed plaintiff’s cause as to said defendant, the order of dismissal reciting that such action was taken “for lack of jurisdiction.” The cause as to the other defendants was allowed to remain on the trial docket.
The facts disclosed by the record show that art. 2039a, V.A.C.S., has been complied with, including the provision for notice to the nonresident. The trial court did in my opinion have jurisdiction over the defendant Morris Hermanos, S. A. Relator is therefore entitled to have his case against Morris Hermanos heard on its merits in the trial court, at the same time the case goes to trial as to the other defendants.
I do not believe that under these circumstances the relator has an adequate remedy by appeal. My views on this particular subject are well expressed by the Utah Supreme Court in a case in which the trial judge, as in the instant case, had under a mistake of law dismissed one of several defendants. In directing that a writ of mandamus issue, here is what the Utah Supreme Court said:
“The further question, however, is: Has the plaintiff an adequate remedy by. appeal? Clearly not. The dismissal does not dispose of the case as between the plaintiff and the other defendants. The case, under our procedure, therefore, cannot be appealed until final judgment is entered therein between all the parties. * * * Moreover, the plaintiff must thus submit to have its action tried in parts and unless, in case of an appeal, the judgment in favor of the other defendants for damages should be reversed by this court the plaintiff may be required to pay costs and defray the expenses incident to two jury trials. In view of all this, we are of the opinion that the only adequate remedy plaintiff has under the circumstances is a writ of mandate requiring the district court to reinstate the case as against the company and to hear and determine the issues as in any other case and to enter such a judgment upon all the issues as to the court may seem just and right.” Ketchum Coal Co. v. District Court of Carbon County, 48 Utah 342, 159 P. 737, 744, 4 A.L.R. 619.
I agree that the writ of mandamus in this case should issue as prayed for by relator.
CRAMER, J., concurs in the above concurring opinion.