101 P. 581 | Utah | 1909
This is an original proceeding in this court for a writ of prohibition to restrain the Honorable W. W. hlaughan, district judge, from proceeding further in a garnishment proceeding commenced and now pending against the plaintiff in the district court of Cache County, Utah. The plaintiff, in its petition, after stating its corporate capacity, in substance, alleges: That in April, 1901, the plaintiff entered into a contract with one John W. Barrett whereby he agreed to erect a certain building for plaintiff; that said Barrett failed and refused to complete said building according to contract; that certain mechanics’ liens were filed against said building which the plaintiff was compelled to pay and discharge; that by reason of the failure of said Barrett to complete said building and by compelling plaintiff to pay said liens plaintiff was damaged and now claims such damages against said Barrett, and to recover the same has brought an action against said Barrett and his bondsmen in the Circuit Court of the United States for the District of Utah; that in April, 1908, a certain action was brought in the district court of Cache County, Utah, by Anderson & Sons Company, as plaintiff, and against said Barrett, as defendant, in which action said Barrett confessed judgment in favor of said plaintiff for the sum of $425; that thereafter on the - day of April, 1908, a writ of garnishment was duly issued in said cause duly served upon the plaintiff herein requiring it to make answer thereto; that the plaintiff answered denying that it was indebted to said Barrett, to which answer a reply was filed, in which the statements of the plaintiff were denied, and the issue thus joined came on for hearing on the 25th day of January, 1909, before the defendant herein; that the action of Anderson & Sons Company, in which the judgment for said $425 was obtained, and in which the garnishment proceeding was instituted, was in fact brought by said John W. Barrett through and by means of counsel employed by him for the purpose of obtaining upon the record of said court a judgment against himself; that thereafter said Barrett, through counsel employed by himself, alone procured the issuance and service
Upon substantially the foregoing allegations, the plaintiff prayed for an order commanding the defendant to appear before this court and show cause why he should not be prohibited from proceeding further in said garnishment proceeding. Such an order was duly issued, and the defendant
It is obvious that the question is not whether the facts alleged in the petition are or are not sufficient to entitle the plaintiff to maintain an action for malicious prosecution upon the ground of a malicious, abuse or a malicious use of legal process as illustrated by the following cases: Lauzon v. Charroux, 18 R. I. 467, 28 Atl. 975;
In 2 Spelling, Extr. Belief, section 1723, tbe author states tbe rule in. tbe following language: “Tbe court will exercise its authority to issue writs of prohibition to courts of inferior jurisdiction, only in cases where such courts clearly exceed their jurisdiction, or attempt to usurp a jurisdiction belonging to some other forum.” The same author, in the section following, in referring to what constitutes a defect or excess of jurisdiction, says: “But there is a distinction in this connection between the defect of jurisdiction arising in pais, and such as are matters of law, and hence determinable upon inspection of the record. The general rule is that, the writ of prohibition, will not issue to restrain an inferior judge from doing an act when he has prima facie jurisdiction.” In 16 Ency. PI. and Pr., 1125, the rule is stated thus: “The sole question for determination upon an application for a writ of prohibition is whether or not the inferior court has usurped jurisdiction or exceeded, its lawful powers, and the writ is always refused when it appears that the court has jurisdiction over the matter complained of.” Further, on page 1126, it is said: “The writ will not be issued on account of errors or irregularities in the proceeding of the court having jurisdiction.” In High’s Extr. Legal Bems., 767, the author states the rule in the following' words:
*522 “It follows from the extraordinary nature of the remedy, as already considered, that the exercise of the jurisdiction is limited to cases where it- is necessary to give a general superintendence and control over inferior tribunals, and it is never allowed except in cases of usurpation or abuse of power, and 'not then unless other existing remedies are inadequate to afford relief. In other words, the remedy is employed only to restrain courts from acting in excess of their powers, and if their proceedings are within the -limits of their jurisdiction prohibition will not lie. If therefore the inferior court has jurisdiction of the subject-matter in controversy, a mistaken exercise of that jurisdiction or of its acknowledged powers will not justify a resort to the extraordinary remedy by prohibition.”
From th© foregoing quotations, which co-ul'd be greatly multiplied, it is clear that the writ of prohibition will issue only when the inferior tribunal usurps or exceeds the powers conferred upon it by law, and when there are
May proceedings in a court of general jurisdiction be arrested by a writ of prohibition against the court upon the sole ground that some suitor is abusing or illegally using legal process in such court ? We think not. If
Nor can the alleged fact that the original action in which the judgment was obtained against Barrett was instituted collusively affect the jurisdiction of the court. It is not even alleged that Barrett did not in fact owe
But it is said that, where the plaintiff is compelled to make disclosures in such a proceeding for the purpose instanced, an appeal is utterly futile — that the purpose sought has been accomplished, and an appeal furnishes ho redress whatever. This may be so, but, if it is, it would still be so in any case or proceeding where one of the parties either on his own motion, or at the instigation of another, sought to elicit evidence from his adversary which was sought for ulterior purposes and to gain information to be
The discharge of the witnesses on hateas corpus proceedings from imprisonment for contempt because they refused to answer questions propounded to them before a notary public was clearly right. If these witnesses had been asked, however, the same or similar questions while testifying in the case on trial before a court of general jurisdiction, would it have ousted the court of jurisdiction to- erroneously have required them -to answer the questions ? While, in so far as it affected the witnesses, the ruling requiring them to answer might have been unauthorized, and might, in a legal
From what has been said it follows that tbe demurrer should be sustained. Further, it appearing that tbe plaintiff cannot so amend its petition as to show a usurpation of jurisdiction, tbe proceeding will be dismissed, with costs to tbe defendant.
It is so ordered.