Jolly v. Marion National Bank

(dissenting) :

I respectfully dissent and would affirm the order of the lower court.

I am not at all sure but that the trial judge has already exercised his discretion in issuing the writ of mandamus. If not, he can do so now. Whether he did or did not, after he concluded, as obviously he did, that the petitioner was entitled to relief as a matter of right, failure to issue the writ would have amounted to an abuse of discretion. Although the issuance of a writ of mandamus is generally within the discretion of the court, it is not always so. A statutory right (as here) should not be denied as a…