72 Colo. 421 | Colo. | 1922
delivered the opinion of the court.
This is an original proceeding in prohibition to restrain the court from proceeding for contempt against the relators, Irwin, Friend, Bigger and Roberts. A rule to show cause was granted and the question is upon the issue of the writ.
The writ may issue from this court only when the respondent tribunal has exceeded its jurisdiction. People v. District Court, 30 Colo. 488, 71 Pac. 388.
The essential facts are as follows: One Dougherty brought suit against Bigger to cancel a sale of a restaurant and furniture by Bigger to him, and to cancel certain notes,
On November 10, Dougherty applied to the court for citation against the four for contempt on the ground that the dismissal of the suit was equivalent to an order that they surrender the goods. The judgment of dismissal expressed no such order. The court thereupon ordered “that the cause be re-opened to investigate and pass upon the question of this alleged contempt and for any further proceeding that may be necessary in respect to possession following the dismissal of the replevin writ,” that citation issue and the contempt hearing be set for November 13, whereupon the application for the writ of prohibition was made to this court.
The allegation in the present petition is that unless prohibited the court will proceed without jurisdiction to punish the relators for contempt.
There is no question about the jurisdiction to dismiss. The dismissal was erroneous as we are holding in Bigger v. Daughtery No. 10,522, but the court had full jurisdiction. A writ of error upon the judgment was taken out of this court and was the proper proceeding.
Concerning jurisdiction of the contempt matter it would seem that the conclusion must be the same. The court had' rendered a judgment and if that judgment had been disobeyed. it had power to punish the culprit. It had, of course, the right to try the question whether it had been disobeyed and that is all the record shows that it was attempting to do. Whether the judgment had been disobeyed is not a question in this proceeding. People v. District Court, 54 Colo. 237, 130 Pac. 324.
It is asserted that unless ’ prohibited the court would punish the relators for contempt, though innocent. It ought not to be necessary to say that we cannot assume that such would be the case, and even if we could, we could not prohibit an act within the jurisdiction.
Rule discharged with costs.