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  •           W. H. Patterson, for the Petitioner, conceded that mandamus could not go if the question was one of judicial discretion, but argued at length to show that the motion to intervene had come too late, and that its allowance was therefore not an exercise of judicial discretion, but a violation of a positive law; citing sections six hundred and fifty-nine, six hundred and sixty, six hundred and sixty-one, and six hundred and sixty-two of the Practice Act, and the following cases: Ex parte Baron & Lyon, 6 Cow. 392; Ex parte Benson, 7 Cow. 363; Ex parte Bailey, 2 Cow. 479; Ex parte Cay Kendall, 6 Cow. 52; The People v. The N.Y. Com. Pleas, 19 Wend. 118; Morse, Petitioner, etc., 18 Pick. 446; Rhodes v. Craig, 21 Cal. 423, per Field, Chief Justice; People v. Lee, 14 Cal 510; The People v. Pearson, 1 Scam. 460; Stafford v. Union Bank of Louisiana, 17 How. 275; Same v. New Orleans Canal and Banking Co., 17 How. 283; The People v. The Niagara Com. Pleas, 12 Wend. 246; The People v. The Judges of Washington Co., 1 Cow. 576.           Calhoun Benham, for Respondent, contended that the case was pending and undetermined at the time the motion to intervene was made, and that the Court in deciding the motion had acted judicially, and therefore his action could not be virtually reversed by this Court by mandamus.
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  •           W. H. Patterson, for the Petitioner, conceded that mandamus could not go if the question was one of judicial discretion, but argued at length to show that the motion to intervene had come too late, and that its allowance was therefore not an exercise of judicial discretion, but a violation of a positive law; citing sections six hundred and fifty-nine, six hundred and sixty, six hundred and sixty-one, and six hundred and sixty-two of the Practice Act, and the following cases: Ex parte Baron & Lyon, 6 Cow. 392; Ex parte Benson, 7 Cow. 363; Ex parte Bailey, 2 Cow. 479; Ex parte Cay Kendall, 6 Cow. 52; The People v. The N.Y. Com. Pleas, 19 Wend. 118; Morse, Petitioner, etc., 18 Pick. 446; Rhodes v. Craig, 21 Cal. 423, per Field, Chief Justice; People v. Lee, 14 Cal 510; The People v. Pearson, 1 Scam. 460; Stafford v. Union Bank of Louisiana, 17 How. 275; Same v. New Orleans Canal and Banking Co., 17 How. 283; The People v. The Niagara Com. Pleas, 12 Wend. 246; The People v. The Judges of Washington Co., 1 Cow. 576.           Calhoun Benham, for Respondent, contended that the case was pending and undetermined at the time the motion to intervene was made, and that the Court in deciding the motion had acted judicially, and therefore his action could not be virtually reversed by this Court by mandamus.
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Smart Summary

THE PEOPLE OF THE STATE OF CALIFORNIA v. WARREN T. SEXTON

         JUDGES: Sanderson, J.

         OPINION

          SANDERSON, Judge

         This is not a case for mandamus. Whether Rundle, Green, and Irvine were entitled to intervene, was a judicial question. The Judge was required to decide it, and he did so. Whether he decided it correctly, is a question which cannot be made in this proceeding. Having allowed the motion to intervene, he could not thereafter enter a judgment for the plaintiff. Instead, therefore, of refusing to act, he has acted, and, having acted judicially, his action cannot be reviewed by mandamus. (Flagley v. Hubbard, 22 Cal. 34; People v. Pratt, 28 Cal. 166; People v. Weston, 28 Cal. 639.)

         Mandamus denied.

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People v. Sexton
(Jul 1, 1869)