186 Ky. 448 | Ky. Ct. App. | 1920
Opinion of the Court by
Denying writ of prohibition.
In the petition of Badford, which-was filed in March, 1919, it was averred in substance that in 1916 he was the owner of certain tracts of land in the suburbs of and adjoining the city of Princeton in Caldwell county, Kentucky, which he had subdivided into lots and advertised them for sale at public auction in ,May, 1916; that a short time before the day of sale Lisanby maliciously and fraudulently and for the purpose of breaking up the proposed sale and to injure Badford, put an advertisement in the Princeton paper warning prospective purchasers that everyone who purchased a lot would be required to build a macadam pike in front of it; that ón the day of salo and when the crowd had assembled Lisanby distributed printed notices throughout the crowd making the same statements contained in the advertisement, all of which were false and untrue and made for the malicious and fraudulent purpose of inflicting financial damage on the plaintiff; that a large crowd had gathered at the sale for the purpose of buying the lots but were prevented from doing so by the publication, and as a result of the publication the property when sold brought much less than it would have brought except for the acts of Lisanby. He asked damages in the sum of $5,000.00.
Lisanby was served in Christian county with a summons issued on this petition and when the case came on to 'be heard filed a special demurrer challenging the jurisdiction of the court, and when this was overruled filed a general demurrer which was overruled; thereafter and without waiving the objections made by the demurrers he filed an answer in five paragraphs setting up (1) that the lots Badford proposed to sell were located within the corporate limits of the city of Princeton in Caldwell county; (2) denying that he fraudulently or maliciously caused the advertisement complained of to be inserted in the Princeton paper, or the advertisement to be distributed on the'day of sale; and also denied
A general demurrer filed by Radford to each paragraph of the answér and to the answer as a whole was overruled and in. the ordinary course of procedure the case will come on for trial in the Christian circuit court at its next term.
Passing the question as to whether Lisanby waived his right to apply to this court for a writ of prohibition after having entered a general demurrer to the petition and filed an answer, only for the reason that we desire to dispose of the case on its merits, it must be apparent from this brief recital of the facts appearing in the record that if we should issue a writ prohibiting Judge Bush from hearing and determining this case, that this
It was not intended in the adoption of section 110 of the Constitution giving this court “power to issue such writs as may be necessary to give it a general control of inferior jurisdictions” that the Court of Appeals should interfere with or attempt to direct or control the pracilpe or procedure pursued by inferior courts within their discretion and jurisdiction, except when it was plainly made to appear that great or irreparable injury would result to the complaining party; or stay their hands when proceeding without their jurisdiction if there was an adequate remedy by appeal or otherwise.
In Western Oil Refining Co. v. Wells, County Judge, 180 Ky. 32, the court, after a citation of many authorities, said:
“Under section 110 of the Constitution this court has power to issue such writs as may be necessary to give it a general control of inferior jurisdictions, and it is well settled that a writ of prohibition may issue in a case like this whenever the inferior court is proceeding out of its jurisdiction, or where it has jurisdiction, but an appeal will not furnish an adequate remedy or there is no other remedy. . . .
“In no instance has a writ of prohibition been allowed against a court proceeding out of its jurisdiction or erroneously within its jurisdiction when any other remedy for the threatened wrong existed, which was adequate. If the right of appeal exists and it is an adequate remedy, the complaining party must be relegated to his remedy through appeal. A review of all the cases decided by this court upon applications for writs of prohibition under section 110, supra, sustains the view, that the writ is granted as a matter of sound discretion, determined by the facts of the particular case, which must present an exceptional or unusual state of facts, which make it apparent that an injury or violation of one’s rights is threatened, and against the results of which he has no adequate remedy, other than the writ of prohibition.”
Following the rule laid down in this case, which is in harmony with the rule announced in many others, among them Adams Express Co. v. Young, Judge, 184 Ky. 49,
For the purposes of our decision and to the end that there may be no misunderstanding as to its meaning or effect it may be conceded that the Christian circuit court had no jurisdiction of the action; that the alleged libel was absolutely privileged; and that the plea of limitation presented a complete defense to the action, but these assumed conditions would not authorize the writ.
We say this 'because it is perfectly plain that the petitioner has an adequate remedy by appeal from any judgment that may be rendered against him and that he will not suffer any more loss, injury or inconvenience than any other litigant against whom an alleged unfounded or fictitious suit is instituted. Accordingly any relief that the petitioner may desire must be secured in the ordinary course of procedure.
Wherefore the writ is denied at the cost of the petitioner.