No. 6400 | Colo. | Sep 15, 1910
delivered the opinion of the court:
In Callbreath v. The District Court, 30 Colo. 486" court="Colo." date_filed="1903-01-15" href="https://app.midpage.ai/document/callbreath-v-district-court-of-fremont-county-6563511?utm_source=webapp" opinion_id="6563511">30 Colo. 486, it was determined that, as a general rule, the action of an inferior tribunal will not be reviewed except as to those matters which it has been given an opportunity to pass upon. That rule is applicable to the case at bar. Even if the district court had authority k determine the question of the jurisdiction of the county court in the premises, and was of the opinion that the latter was acting without its jurisdiction, it should not have assumed that, had Class raised that question in the county court, it would not have correctly ruled thereon. Hence, it follows that, until it had an opportunity to pass upon that proposition, it should not have been prohibited from proceeding further in the. matter. Inasmuch as the petition for the writ of prohibition addressed to the district court failed to state that petitioner had challenged the jurisdiction- of the county court by some appropriate plea or motion in that tribunal, the writ should have been denied, and the motion to quash the temporary writ upon the ground that the allegations of the petition were insufficient in law to warrant the granting of the writ, sustained; and as
This conclusion renders it unnecessary to pass upon the question of the jurisdiction of the district court to issue a writ of prohibition against the county court.
The judgment of the district court is reversed, and the cause remanded with directions to sustain the motion to quash, upon the ground of the insufficiency of the petition for the reasons above given, and to dismiss the proceeding.
Reversed and remanded with directions.
Mr. Justice Musser and Mr. Justice Hill concur.