Dobson v. Westheimer

5 Wyo. 34 | Wyo. | 1894

GrROESBECK, CHIEE JUSTICE.

The said plaintiff by his attorney presents his application for the writ of prohibition, which shows on its.face: That petitioner is now and was during all of the times mentioned in his petition a resident of Weston county in this State; that defendants, S. Westheimer and Company, brought suit in the district court of Sheridan county against plaintiff Dobson and one J. A. Jones, as co-partners doing business under the name and style of J. A. Jones and Company; that at the time of filing the petition in said suit an affidavit of attachment was filed alleging several grounds of attachment permitted by statute and also an undertaking in attachment approved by the clerk of court; that a summons and order of attachment issued thereon directed to the sheriff of Sheridan county in which J. A. Jones and Company were named as defendants. These were returned non est inventus and nulla bona, and alias summons and an order of attachment were . issued, one directed to said sheriff and'the other to the sheriff of Weston county. Jones was not found, but Dobson was served with the summons in Weston county, and summons by publication was made against Jones. Under the alias order of attachment a small amount of personal property of Jones & Co. was seized in Sheridan county and personal property consisting probably of liquors and saloon fixtures as the property of Dobson in Weston county. Dobson filed his plea to the jurisdiction of the court in said action, alleging that said court had no jurisdiction of the property and person of Dobson, and that he could be sued only in Weston county and his property seized only by virtue of process issuing out of a competent court'of that county. This plea was overruled by the court and the property seized in both counties ordered to be sold to satisfy the judgment • which the court rendered on default, no appearance other than the plea to the jurisdiction having been interposed-.- ifo motion- was made to dissolve the attachments. We are asked to grant a “temporary writ of prohibition” by which we assume that petitioner desires a-rule of this court on the parties named defendants' to show cause why the writ should not issue. The. code permits an action to be brought against a non-resident of this State ’ in any county where-there is-property of-or-debts-owing'to the defendant, and when-the action .is rightly brought in'any county a summons’- may1 be- issued to- any other county against one or- more of the defendants1 at' the--plaintiff’s -request, with but one exception'which'doés1 not apply’-in this cáse;' -Secs. 2419, 2425, Rev.’ Stat.-' 'Orders'of attachment may be issued to the sheriffs of'the different’ counties, and several of them-may, at the option'of the1 plaintiff-be issued-at the same-time or in succession-. Rev. 'St.:, sec. 2873.

'■•It would seem that the proceedings relating to the issuance of the summons and' orders of attachment were regular, but it is improper to décide that' question, as it is- manifest that we can afford the petitioner-no relief in-that respect,-as the regularity-of the -proceedings' off a-court cannot be reviewed by,the writ of-prohibition. ■ ■ We "have-no'-statute relating to the procedure-govérning the"applieation-for the’-writ'of prohibition. The-' constitution of' this State "provides that “the supreme Court-shall’also have' power-to issue writs’of; mandamus, re? view> prohibition,-habeas'corpus! certiorari and other’ writs -necessary--and' proper to-the’Complete exercise of- its-.appellate and revisory-jurisdiction.” 1 Sec.- 3, Art. 5. -One of- the essential attributes of-appellate jurisdiction,- and one of the in-•herént powers-of ah appellate court, is the right-to make use •of-all -writs known- to the common la-w, and-if necessary, to invent new writs of’proceedings in order to suitably exercise the jurisdiction conferred. Wheeler v. N. C. Irr. Co., 9 Colo., 249; Att’y Gen. v. R. R. Cos., 35 Wis., 425; Marbury v. Madison, 1 Cranch, 137.

The constitutional grant., constm.es..itself and- is' broad enough to clothe this court with abundant authority in the exercise of its appellate and revisory, powers without invoking the inherent powers, of the court.. The power granted .is construed with reference to the writ, as known to. the common law, and is confined to eases where the act.it is sought to prohibit is o.f a judicial nature., It has been held, under such a constitutional provision, that a-.statute- extending' the use of the writ to acts which are either-judicial or. ministerial, is unconstitutional. High Ex. Rem.,; sec. 785. As we have no statute regulating the proceeding/the method .of• procedure .rests entirely .upon-the .ancient practice. .The writ-was issued to prevent the. encroachment..of the ecclesiastical. Gourts,.upon the civil tribunals and-vice .versa. , It has rarely been-employed under the common law; and it'has been employed most extensively.where the procedure-has been regulated by. some statutory method as in: California.. But.in that State,--the writ mentioned in the constitution is.declared-to be.the writ as known to the common law, and not the converse of the writ of mandamus, although the code-of civil procedure of that State states that it is the “counterpart” of such writ. Maurer v. Mitchell, 53 Cal., 289. The application was an original one addressed to the supreme court of California for the writ to prevent proceedings by a Tax Collector in. selling property charged with a special assessment for the improvement of streets, under a special statute, and the writ was denied. So it appears that either under the common law or .by virtue of a statute the writ will not lie except, to prevent- the encroachment of jurisdiction by courts, .or. at the farthest, bodies exercising quasi judicial functions.. • It cannot be .granted for the purpose of arresting proceedings which are purely-.ministerial in their nature, but only those- of a-judicial character. 19 Am. & Eng¡ Cy. of Law, p. 269,.and cases cited.' It will not lie to an inferior court, to restrain the issuing of an,execution, for this is , a ministerial;, not a-judicial act. Ex-parte Braudlaucht, 2 Hill, 367; People v. Supervisors of Queens Co., 1 Id., 195, 201., A1Í the proceedings of .the lower court have passed, to judgment and execution, and. the effect of the writ would be to control and arrest the sheriff from selling the property seized in attachment and merged into execution by the order of the court. The judgment was rendered before this application was made, as appears from the petition, and the execution was already directed by the order of the court; -hence the only officer to be affected by the application would be the sheriff of Weston county, and as we háve already seen, he, as a ministerial officer, can not be arrested in his official action, as his duties are purely ministerial and the writ runs only to arrest judicial proceedings or such as are judicial in their nature. The assertion that the petitioner was never a member of the co-partnership sued and now judgment debtors, can not be considered here. That question could only have been raised in the trial court by answer, or other proper pleading, and we could not in this proceeding review the action of the trial court, even if it is in our judgment erroneous, as such action can only be reviewed on error.

The writ is denied and the petition dismissed.

Conaway and ClaRk, ,TJ., concur.