Patrick Sherman v. Honorable Fred Davis, Judge

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 23, 2004

PATRICK SHERMAN

Petitioner

v.

HONORABLE FRED DAVIS,

JUDGE

Respondent

04-718

PRO SE PETITION AND AMENDED PETITION FOR WRIT OF MANDAMUS [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2003-944-5]

PETITION FOR WRIT OF MANDAMUS MOOT; AMENDED PETITION DENIED

Per Curiam

Patrick Sherman filed a petition for writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasonable time on a pro se petition for writ of habeas corpus filed in the Circuit Court of Jefferson County on December 23, 2003, and a related motion for default judgment filed March 3, 2004. On July 1, 2004, Judge Davis entered an order dismissing the habeas petition for failure to obtain service on the defendant. The dismissal of the habeas petition rendered the motion for default judgment moot. As the circuit court has acted in the matter, the petition for writ of mandamus is moot.

After the circuit court order dismissing the habeas petition was entered, petitioner filed an amended petition for writ of mandamus in this court in which he argued that the circuit court's ruling was wrong. Respondent further asked this court to direct respondent Davis to pay damages to him.

The amended petition is denied. If petitioner desired to challenge the ruling, his remedy was by appeal. A mandamus action is not a substitute for an appeal. See Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

Petition for writ of mandamus moot; amended petition denied.