34 US 571 The Life and Fire Insurance Company of New York v. Christopher Adams

34 U.S. 571

9 Pet. 571

9 L.Ed. 233


January Term, 1835

THIS was a motion for a mandamus, to be directed to the district judge of the district of Louisiana.

There had not been any rule taken out and served on the district judge to show cause why a mandamus should not issue. Copies of the papers on which the motion was founded, with notice that the same would be made at this term, had been served on the district judge and the parties in the suit pending before him, during the late vacation. The district judge appeared by counsel, and waived any notice of a rule to show cause, and offered to show cause instanter. An objection having been suggested, whether, even by consent on both sides, the rule and service thereof ought to be dispensed with, some discussion took place on the subject between the bench and the bar.

Mr. Justice BALDWIN was of opinion, that in a cause of this sort, the court ought not to dispense with the regular course of proceedings, by the granting and service of a rule to show cause.

Mr. Chief Justice MARSHALL said, that the grant of a rule to show cause and the service thereof, is a matter in the discretion of the court.


The court may, in its discretion, grant an alternative mandamus, if it deems it more conductive to public justice, and to prevent delays. Here all the parties express themselves ready to proceed in the cause. The district judge waives any formal rule and notice, and wishes no delay; and states his readiness now to show cause. Under such circumstances, all the purposes of a rule to show cause and notice are accomplished, and there is no necessity for directing such a rule and notice. The court, therefore, in my opinion, may properly proceed at once to the hearing of the cause, for the purpose of ascertaining whether a mandamus ought or ought not to be awarded.


The other judges concurred in the opinion of the chief justice; and the court directed the motion to come up on the next motion day.