(аfter stating the facts). The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection аgainst the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bаndy, Judge,
In Rush v. Denhart,
“If we should lay down the rule that .application by original proceedings might be made to us to stay the hand of the inferior jurisdictions, whenever, in the opinion of counsel, the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts, would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.”
If the making of the Bank of Commerce of McG-ehee a party to the original action brought by the McG-ehee Special 'School District against the Merchants’ & Planters ’ Bank and others was a fraud upon the jurisdiction of the court, then such chancery court would have the power •to determine this fact. It is well settled that if the existence or non-existence of jurisdiction depends on contested fаcts which the inferior court is competent to inquire into and determine, a writ of prohibition'will not be granted, although the superior court should be of the opinion that the claims оf fact had been wrongfully determined by the lower court, and, if rightly determined, would have ousted thе jurisdiction. The chancery court in the original action had jurisdiction of the- subject-mattеr, and it had jurisdiction to inquire into the fact whether the Bank of -Commerce of McG-ehee had been fraudulently made a party for the purpose of giving the Desha Chancery Cоurt jurisdiction in the premises. In this controversy we must take the cause- of action as it was аlleged by the school district in its original complaint; otherwise we would try the merits of the cоntroversy for the purpose of determining whether or not we have power to try them. In other words, the contention now made by counsel for petitioners involved the whole mеrits of the plaintiffs’ original case against petitioners. If the allegations were true, it wоuld defeat the plaintiffs’ complaint in the original case and should -have been pleaded in bar in that case and evidence given under the general issue to sustain the plea.
That this view was at first taken by counsel for the petitioners is shown by the record in the original case, which is exhibited with their petition. This record comprises over 60,0( pages of typewritten matter. Numerous depositions -were taken by both parties, and a decision hаd been actually rendered by the chancellor and announced to the partiеs. Nothing remained to be done except to enter the decree upon the rеcords of the chancery court in accordance with the findings of the chancellor.
The response of the chancellor shows that all parties submitted to the jurisdictiоn of the court and agreed that he should taire the case under advisement and render his decision in vacation. All the parties prepared written briefs in the case, and after the chancellor had made an exhaustive study of the case and had preрared and announced his written findings of fact, the present petition for a writ of prohibitiоn was filed in this court. It is not plain that there was an absence of jurisdiction in the chancery court, for the question depended upon the proof which should he made by them in the chancery court. If there was a joint liability on the part of the Merchants’ & Planters’ 'Bank аnd the Bank of Commerce of MeGrehee, the school district had a right to sue both of thеse parties and to establish its claim against the Bank of Commerce, notwithstanding its insolvenсy. It would have a right to do this in .order to- receive its pro rata share of the dividends from it аs an insolvent bank under the winding-up proceedings by the State Bank Commissioner.
Since the cirсumstances and conditions surrounding the parties depend upon proof, we think the case is one in which to refuse the writ of prohibition would be a proper exercise of discretion. Therefore the petition for the writ of prohibition will be denied.