66 Ala. 453 | Ala. | 1880
The writ of prohibition is an extraordinary judicial writ, issuing from a superior to an inferior court, and designed to prevent such inferior tribunal from usurping jurisdiction with which it is not constitutionally or legally vested, or to which it has no legal claim. — High on Extr. Rem. § 762. It is, however, never allowed, even in cases of usurpation or abuse of power, unless existing remedies are inadequate or inapplicable. It is always a good reason for withholding the writ, if the party aggrieved has another and complete remedy at law, by which the desired end can be satisfactorily and fully accomplished.—Ib. §§ 767, 770; Ex parte Greene & Graham, 29 Ala. 52; Ex parte Peterson, 33 Ala. 74.
The appellee, we think, had an adequate and plain remedy, in the present case, by motion to quash the execution issued against him by the justice. "Whether such process be void absolutely, or merely voidable, a motion to quash would lie in the justice’s court, on the defendant in execution giving his adversary reasonable notice of the intended application, and of the grounds on which it is based, provided the matter be prosecuted without unreasonable delay. — Freeman on Ex. §§ 73-76.
The writ was improperly granted in this case, for another adequate reason. It can never be invoked to prevent proceedings which are purely ministerial in their nature, but only those which are of a judicial character. The issue of an execution by a justice of the peace is a ministerial, not a judicial act; and the writ of prohibition will not, therefore, lie to prevent its issue, however illegal or unauthorised, and whether such process be void or voidable.—High on Extr. Rem. § 769; Kyle v. Evans, 3 Ala. 481; State v. Clark Co. Court, 41 Mo. 44; Ex parte Brandlacht, 2 Hill, 367. In the latter case, Cowen, J., says : “The office of a prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial,- not ministerial 'power. Otherwise, we might be called on to send the writ whenever a justice of the peace was about to issue civil or even criminal process irregularly;” the very case now confronting us in the present instance.
The Circuit Court erred in granting the writ; and the judgment is hereby reversed, and judgment is here rendered, dismissing and vacating the whole proceeding had in that court.
