4 Colo. 95 | Colo. | 1878
The writ of prohibition is defined as an extraordinary judicial writ, issuing out of a court- of superior jurisdiction, and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. High’s Extraordinary Leg. Rem., § 762.
It is not granted ex débito justifies, but rests in the sound discretion of the court.
It is a prerogative writ, used with great caution, where the ordinary remedies provided by the law are not applicable or adequate. It is never allowed to usurp the office of a writ of error or an appeal. It is used to confine inferior courts in the exercise of their powers, within the limits fixed by the law.
A clear distinction is made by the authorities between the assumption of a jurisdiction, to which the court has no legal claim, and the mere erroneous exercise of a jurisdiction, with which the court is invested. If the inferior court has jurisdiction of the subject-matter, a mistaken exercise of that jurisdiction, or of its acknowledged powers, will not justify a resort to the extraordinary remedy by prohibition. There must be excess of jurisdiction, and not mere error in the exercise of a jurisdiction which is conceded. High’s Extraordinary Leg. Rem., § 762 et seq.
The grounds upon which the writ is prayed in this case
In this view, the demurrer must be sustained and the rule ' to show cause discharged.
Rule discharged.