295 Mass. 355 | Mass. | 1936
This is a petition for a writ of prohibition. Its allegations in effect are these: The petitioner was plaintiff in a suit in equity which was heard on its merits before a judge of the Superior Court. The trial judge on January 9, 1936, made findings, rulings and an order for a decree, but a final decree has not been entered. The trial judge disqualified himself from dealing with the cause, first, because influenced in his findings by a preconceived and extraneous opinion as to the plaintiff as expressed to his counsel in these words: “He comes of a race whose self-interest makes them
A demurrer was filed to the effect that the Superior Court had jurisdiction of the cause described in the petition, that the writ of prohibition was sought to correct errors or irregularities of a tribunal acting within its jurisdiction, that other and adequate remedies were open to the petitioner, and that no cause sufficient in law was stated for the issuance of the writ. The single justice, after hearing, ordered the demurrer sustained because the Superior Court had jurisdiction of the cause described in the petition, and ordered the petition dismissed. The exceptions of the petitioner bring the case here.
The function of the writ of prohibition and the principles which govern its issuance under our practice are well settled. “It will'not be granted if the court or tribunal against which it is sought has jurisdiction of the cause or matter which it proposes to adjudicate. Prohibition lies only to restrain a clear excess of jurisdiction about to be committed against one who has not submitted thereto where there is no other
The trial judge alone is not the respondent named in the petition. The Superior Court is a court of large jurisdiction composed of more than thirty judges. The only complaint described in the petition is against one of those judges. It is inconceivable that the case cannot be tried by some of its judges. The petitioner invoked by his suit the jurisdiction of the court and not of a single judge thereof.
The regular procedure of our courts affords requisite remedy for the wrong of which the petitioner complains. The alleged utterance of which the petitioner complains was made after the case was decided. Whatever its effect may have been, there was ample remedy by motion for a new trial. Nicoli v. Berglund, 293 Mass. 426. Harrington
The principles already stated are decisive against the petitioner. No further discussion is required.
Exceptions overruled.