65 So. 788 | Ala. | 1914
The writ of prohibition is a drastic remedy and can be resorted to against a lawful tribunal only to prevent the judge or the court from proceeding in a matter of which it has no jurisdiction; or, when the court, having jurisdiction for a particular purpose, transcends the limits by which it is circumscribed.—Ex parte Brown, 58 Ala. 536; Ex parte Roundtree, 51 Ala. 42, 51.
The writ is not favored in any case where the party complaining may effectively invoke some other remedy provided by law.—Ex parte Peterson, 33 Ala. 76; 32 Cyc. 613, D. The sole inquiry is: “Has the inferior tribunal assumed to act upon a matter, or upon the rights of a party, that could not be determined, or proceeded against in that forum ?”•—Ex parte Greene, 29 Ala. 52, 58.
“If the court is one of established jurisdiction, a plea that the subject-matter of a particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will ordinarily afford full relief.”—Ex parte Roundtree, 51 Ala. 51.
The petitioner does not deny the right of Payette county to condemn land for a public road. This right is conferred by section 145, Code of 1907. Nor does he deny the jurisdiction of the probate court in a proceeding by the county for that purpose. This jurisdiction is conferred by section 3860, Code of 1907.
It is his theory, however, that the probate judge is necessarily proceeding only under the authority of the local act; that the act is void; and hence that a proceeding in the name of Payette county, which is not authorized by the court of county commissioners, does not invoke the jurisdiction of the probate court.
Conceding therefore, for the purpose of this case, that the local act is unconstitutional and void—a point which we do not decide—the probate court was never-. theless clothed with full power and authority under the general statutes to entertain the proceeding to condemn petitioner’s land at the suit of the county, and to render judgment thereon. It had jurisdiction of the general subject-matter, of the particular land, and of petitioner himself. The only question is whether the suit was instituted by the authority of the plaintiff county, a question which may arise in any suit, and which can be and ought to be presented to the trial court itself by an appropriate motion or plea on the part of the defendant.
Such a case does not demand, and the law does not therefor afford, the extreme remedy of prohibitive interference by a superior court. A plea in abatement, or a motion to stay the proceeding, in the nature of a plea in abatement, would have, presented the question for determination by the probate court, and if the decision had been adverse to the defendant, and the remedy by appeal were inadequate (see Ex parte Montgomery L. & T. Co., infra, 65 South. 403), he might and should have resorted to the writ of mandamus to compel the proper action by the probate court (Ex parte Watters, 180 Ala. 523, 61 South. 904).
It is to be noted that in Ex parte Montgomery L. & T. Co., supra, the writ of prohibition was granted because the property sought to be condemned, was not
Here there is neither absence nor excess of jurisdiction, and prohibition is not the proper remedy.
It results that the order of the circuit judge granting the rule nisi was erroneous, and will be set aside; and an order will be here made denying to petitioner the relief prayed for.
Reversed and rendered.