WALTER E. OLSEN AND HARTFORD BEAUMONT, PETITIONERS, VS. FRESSEL & CO. AND SIMPLICIO DEL ROSARIO, JUDGE OF FIRST INSTANCE OF MANILA, RESPONDENTS.

This is an original action commenced in the Supreme Court. Its purpose was to
obtain the writ of mandamus to require the said Simplicio del Rosario to proceed
to the trial and determination of the case of Olsen vs. Fressel &
Co. (No. 14354), pending in the Court of First Instance of the city of Manila,
as soon as may be, and not later than a date to be fixed in the order of the
Supreme Court.

It appears from the record that on or about the 21stday of August, 1916, the
petitioners herein commenced an action against Fressel & Co. in the Court of
First Instance of the city of Manila for the purpose of recovering the sum of
P3,498.65, with interest and costs; that on the 11th day of September, 1916, the
defendants filed a demurrer, alleging that the facts stated in the complaint did
not constitute a cause of action; that said demurrer was overruled on the 27th
day of September, 1916; that the defendants duly answered the complaint in said
cause on the 14th day of November, 1916; that the cause was set down for hearing
on the 8th day of February, 1917. On the 29th day of January, 1917, the
defendants presented a motion praying that the trial of said cause be postponed
“until a reasonable time after the conclusion of the present war.” Said motion
was based upon the affidavit of one E. Nottebohn. Said affidavit asserted that
one George Ludewig was an indispensable witness for the defendants; that said
witness had been the manager of the defendant company during all of the time
mentioned in the complaint; that said witness was at present a prisoner in
Russia; that he was a partner of the defendant company and would return to the
Philippine Islands upon being released from imprisonment, or give his testimony
by deposition, which testimony could not be taken while he was a prisoner. The
motion to postpone the trial was finally brought on for hearing before the
Honorable Simplicio del Rosario, judge, and was by him granted on the 8th day of
February, 1917, The dispositive” part of the order granting said motion is as
follows:

“The trial of this case is hereby suspended and the term applied for by the
defendant granted, which shall expire on the 31st day of December of this year;
within said term the presence of the witness, or at least his deposition, shall
be procured; on the understanding that if at the expiration of same the
defendant shall not have obtained either evidence, the trial of the case will be
continued.”

While the writ of mandamus may be invoked for the purpose of setting inferior
courts in motion, and, to compel them to act when action has been either refused
or delayed, yet it should not be invoked for the purpose of directing or
controlling courts in matters resting within their sound discretion. (High on
Extraordinary Legal Remedies, sees. 147-198; and cases cited.)

The granting or a refusal to grant a postponement of a trial is a matter
addressed to the discretion of the court in the performance of its duty, and
unless that discretion has been abused, the superior courts will not interfere
by the remedy herein prayed for. (Sec. 141, Act No. 190; Pellicena Camacho
vs. Gonzalez Liquete, 6 Phil. Rep., 50.)

The reasons given for the postponement of the trial in the present cause are
fully supported by the affidavit presented in support of the said motion for
postponement of the trial. The lower court, under the facts given, was fully
justified in granting said motion.

The remedy prayed for, therefore, is hereby denied, with costs. So
ordered.

Arellano, C. J., Carson, Araullo, Street, and Malcolm, JJ.,
concur.