179 N.E. 441 | Ill. | 1931
Lead Opinion
This cause is here on an original petition filed in this court praying that a writ of prohibition issue against the circuit court of Washington county, respondent herein. The petition was filed on the relation of the Modern Woodmen of America, a corporation, and alleges that there was filed in the circuit court of Washington county a bill of complaint in which H.J. Schmidt, William Lutz, J.W. McKissick *36
and A.E. Rouland, members of the Modern Woodmen of America, are named parties complainant, suing on behalf of themselves and all others similarly situated, seeking to restrain the petitioner here from enforcing certain changes in the by-laws of the society and from enforcing increased rates of insurance authorized by such amended by-laws. The petition avers that petitioner is the same society named as one of the parties defendant in the case entitled Jenkins v. Talbot,
There are attached to the petition, as exhibits, copies of the bill filed in the circuit court of Washington county and the amendments thereto, the sworn answer of the petitioner thereto, the decree entered in the case of Jenkins v. Talbot, and the order for temporary injunction entered by the circuit court of Washington county. A rule to show cause and a stay of proceedings pending the disposition of this petition were entered. Respondent has demurred to the petition. Briefs of the parties and an abstract have been filed.
The grounds on which the demurrer of respondent is based are, first, that this court has no original jurisdiction to grant the writ as prayed in the petition and that the petition attempts to invoke the original jurisdiction of this court; second, that this court has no jurisdiction to grant the writ prayed for in aid of its appellate jurisdiction; third, that the right to this writ has been previously adjudicated by this court against the petitioner; fourth, that the petition shows on its face that allowance of its prayer *39 would violate constitutional rights of respondent and complainants in the bill filed in the circuit court of Washingtion county; and fifth, that the petition is insufficient.
The writ of prohibition is of ancient origin. In Beame's Translation of Glanville, pages 56, 96, 97 and 98, a number of forms of such writs as then in use are set out. Glanville's treatise was written about 1181 and is the earliest known work on the English law. Originally, in England jurisdiction to issue writs of prohibition was exercised by the Court of King's Bench, though it was later exercised by courts of chancery and common pleas or exchequer. (3 Blackstone's Com. 111.) In its original form it was used to prevent encroachments by the ecclesiastical upon the civil courts. It has always been defined as an extra-ordinary judicial writ issued out of the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior court from usurping a jurisdiction with which it is not legally vested and to keep such court within the limits and bounds prescribed for it by law. The Mayor v. Cox, 2 L. R. Eng. Ir. App. (1867) 239; People v. Works, 7 Wend. 486; High on Ex. Legal Remedies, (3d ed.) sec. 762.
A writ of prohibition is a common law remedy, and, like other common law remedies, it is generally recognized as existing in this country unless abolished by positive statutory enactment. The writ is here exercised by an appellate or superior court to restrain an inferior court from acting without authority of law when damage and injustice are likely to follow from such action. It is a prerogative writ, and, like all other writs of that character, it is to be used with caution, and only to secure order and regularity in judicial proceedings when none of the ordinary remedies provided by law are applicable or adequate. It may be invoked to prohibit the inferior tribunal from assuming jurisdiction in a matter over which it has no control and *40
also from going beyond its legitimate powers in a matter over which it has jurisdiction. Its object is not to remove the subject matter of the proceedings from the lower to the higher court for purpose of a decision on the merits of the controversy, but to restrain the lower court from further action in such proceeding. It is never resorted to when there is another adequate remedy or to correct mere irregularities nor is it to be used to perform the functions of an appeal or writ of error. (People v. Circuit Court,
In People v. Superior Court,
In People v. Superior Court, supra, the common source of jurisdiction to issue writs of prohibition and writs ofcertiorari was discussed and recognized and the distinction between that case and the case of People v. Circuit Court was pointed out and declared to be, that in the latter case the appellate jurisdiction of the court had never been involved, *42 while in the matter under consideration, which was the criminal proceedings against Lipsey, the appellate jurisdiction of this court was involved. It was there said: "It seems illogical to say a writ of certiorari issued to preserve the status while the cause was here pending was issued for the purpose for which we might lawfully direct the issuance thereof as our power in the premises is above defined, but that a writ issued to prevent an interference with the execution of the judgment which we, in the exercise of our appellate jurisdiction, had directed should be carried into effect was not issued for the purpose for which we might so lawfully direct its issuance; that while the case is pending, and so long as the result is uncertain, this court may by certiorari prevent any disposition being made of the body of the prisoner that would render any judgment thereafter rendered nugatory, but that when this court has directed that the judgment itself shall be carried into effect the court is powerless to prevent any unauthorized and illegal interference therewith by an inferior tribunal. In our judgment, when we directed the criminal court to carry into effect the original sentence, that court, and the agencies made use of by it in complying with our direction, became our agencies, and any unauthorized interference with them, or either of them, while executing that sentence, was an illegal infringement of our appellate jurisdiction. Under such circumstances a writ of certiorari may properly issue from this court in aid of and to protect the appellate jurisdiction of this court and to prevent an unlawful interference with the execution of the sentence which this court has directed the criminal court to carry into effect."
The right of this court or the Appellate Courts to issue writs of certiorari in aid of their appellate jurisdiction was recognized in People v. Pam,
As stated, the general rule is that a writ of prohibition may be issued by a superior court to an inferior court to *43
prevent the latter from assuming jurisdiction not vested in it, or exceeding jurisdiction which it has by going beyond its legitimate powers in a matter within its jurisdiction. Jurisdiction of a court in a particular case is not alone the power of the court to hear the cause but it likewise involves the power to render the particular judgment entered, and every act of the court beyond that power is void. Armstrong v.Obucino,
It may be said that the rule is well settled in this State that while a writ of prohibition may not be used simply to prevent or correct errors of an inferior court, yet a superior court may, in aid of its appellate jurisdiction, issue such writ against an inferior court in a case in which this court has exercised its appellate jurisdiction and entered judgment, the purpose of the writ being to prevent an attempt on the part of such inferior court to set aside and nullify the judgment of the superior court once entered. This rule is a complete answer to the argument of respondent that the court, having entered judgment in the case of Jenkins v. Talbot, supra, at a prior term, had lost jurisdiction of the subject matter given to it by appeal and therefore has no appellate jurisdiction to protect. This rule is likewise established in other States. InCity of Palestine v. City of Houston, 262 S.W. (Tex.) 215, a writ of prohibition was issued out of the Court of Civil Appeals, directed to the district court of Harris county of that State, restraining such inferior court from issuing a temporary injunction. It appears that the controversy arose over the removal of the offices and shops of the Great Northern railway from the city of Palestine. A decree prohibiting such removal was entered by the district court of Cherokee county and later affirmed by the Court of Civil Appeals. The city of Houston thereafter filed a proceeding in the *44
district court of Harris county to enjoin the railway company from maintaining its offices and shops at any other place than the city of Houston. The defendants in that proceeding filed an answer setting up former adjudication of the question, and the city of Palestine applied to the Court of Civil Appeals for a writ of prohibition. It was held that the proceeding in the Harris county district court had the effect to obstruct and interfere with the due enforcement of the judgment theretofore entered by the Court of Civil Appeals affirming the decree of the district court of Cherokee county and invaded the jurisdiction of that appellate court, and the writ was awarded. In State v. White,
Respondent argues that as the petitioner had a right to appeal from the order of the Washington county circuit court awarding a temporary injunction this court was without jurisdiction to enter a writ of prohibition, for under the established rule such writ could not be issued in cases where a review of the decision of the inferior court might be had. It may be said that this is generally the rule where an adequate remedy is provided by law for a review of the proceedings in the inferior court. This is not, however, necessarily true in cases where a writ is sought in aid of the superior court's appellate jurisdiction, since the writ in such case is based on the want of power of the inferior court to invade or obstruct the judgment of the superior court or its consideration of the appeal, as the case may be. Again, it may be, as petitioner contends here, that an appeal would be wholly inadequate, and that before the matter could be reviewed on appeal the judgment of this court in the cause would be entirely abrogated and petitioner itself destroyed. Curtis v. Cornish, 84 Atl. (Me.) 799; Atchison v. Love, 119 Pac. (Okla.) 207; Jacobsen v.Superior Court, 219 Pac. (Cal.) 986. *45
In this case the demurrer of respondent admits all averments of the petition well pleaded. Among those are the allegations that since the entry of the judgment of this court inJenkins v. Talbot, supra, and on the basis of that judgment, petitioner has entered into hundreds of thousands of new insurance contracts with its members; has set aside reserves amounting to millions of dollars, as provided by section 42 of the by-laws as amended; has issued over four hundred thousand new memberships to those members who joined prior to July 1, 1919, or permitted them to take cash withdrawal benefits; has issued to members who joined prior to July 1, 1919, exchanged insurance in excess of $620,000,000 and increased insurance in excess of $32,500,000; has issued double indemnity in excess of $138,000,000; has issued limited accident insurance in excess of $6,250,000, and has disbursed all of the assets in the benefit fund in accordance with amended section 42, which fund on July 1, 1929, amounted to $39,000,000. The facts set up in the petition of petitioner and admitted by the demurrer show that by the issuance of a temporary injunction petitioner lost thousands of members through loss of confidence in the solvency of the society; that its affairs were thrown into confusion and chaos, and that an interruption for even a brief period of time in the collection of the adequate assessment rates by the society would result in the destruction of its actuarial solvency and therefore the destruction of the society. In such a state of facts as here alleged and admitted by the demurrer, a review, by appeal, of the order of the circuit court of Washington county would be a mere mockery. Such a remedy would be in nowise adequate.
Counsel for respondent also argue that while this court may issue a writ of prohibition in aid of its appellate jurisdiction in a case where there is an affirmative judgment entered by this court, yet here, where the only judgment was that affirming the circuit court of Cook county dismissing *46 the bill of complaint in the Jenkins case, there is nothing for this court to protect and the rule with reference to protection of the judgment of the court does not apply. The judgment of this court which the temporary injunction of the respondent court was designed to affect was that section 42 of the by-laws as amended was a valid and legal by-law, and that judgment therefore necessarily fixed the right of the petitioner society to collect the assessment provided for by that by-law, and the temporary injunction could have no other effect than to obstruct that judgment.
Counsel also argue that the bill for injunction filed in the Washington county circuit court was on a different ground from that urged in Jenkins v. Talbot, and that therefore it was not an interference with the judgment of this court in that case; that the ground of attack in the bill filed in the Washington county circuit court was fraud, while such was not an issue inJenkins v. Talbot, supra. It appears, however, from the petition and by the answer filed in the Washington county circuit court, and as well by respondent's demurrer, that fraud was alleged as a ground for relief in the Jenkins case and was on the motion of complainants in that case dismissed out of the bill. It is clear, therefore, that the charge of fraud was made by complainants in the Jenkins case, a part of whom are complainants in the case filed in the Washington county circuit court, and that such charge was later abandoned by them. The question of fraud was not left open as a ground of later attack against the by-laws of petitioner but was necessarily disposed of in the Jenkins case. The rule concerning res judicata
embraces not only what was actually determined in the former case between the same parties or their privies, but it extends to any other matter properly involved which might have been raised and determined and to all grounds of recovery or defense which might have been presented. (Phelps v. City of Chicago,
Counsel for respondent also argue that Jenkins v. Talbot,supra, having been appealed to the Supreme Court of the United States, this court thereby lost jurisdiction of the judgment entered by it pending such appeal, and therefore has no jurisdiction to award a writ of prohibition. As the Supreme Court of the United States has, since this case was taken under advisement, dismissed the appeal in the Jenkins case, no further attention need be given to this argument.
It is also argued that this court has passed upon the right of the petitioner to a writ of prohibition in this case by denying a previous application therefor. The facts on which this position is grounded are as follows: Subsequent to the filing of the bill under consideration in the Washington county circuit court, and prior to any action thereon by that court, an application was made to this court for the issuance of a writ of prohibition. It not then appearing that the Washington county circuit court would take any action in the premises affecting the judgment heretofore entered by this court, that application was deemed to be without sufficient showing and was therefore denied. This application, however, comes after the Washington county *48 circuit court has entered a temporary injunction attempting, in effect, to set aside the judgment of this court in theJenkins case, and the present application was therefore permitted to be filed and a stay order was entered. The argument of counsel for respondent is therefore without force.
It is also argued that, this being a proceeding at law, the petition is insufficient, in that it includes by reference, only, the copies of the proceedings in the Washington county circuit court and in Jenkins v. Talbot, supra. The writ is a common law writ as generally recognized in this country. (Exparte Cooper,
We are of the opinion that this court not only has jurisdiction to enter a writ of prohibition in this case, but that in order to prevent the nullification of its judgment heretofore entered in the Jenkins case and in order to prevent *49 ruin of the petitioner society, which must follow if it be relegated to its remedy by appeal, this court should award this writ. The writ of prohibition is therefore awarded as prayed.
Writ awarded.
Dissenting Opinion
This court has no original jurisdiction to award a writ of prohibition and will not award one except in aid or protection of the court's appellate jurisdiction. Appellate jurisdiction is not involved unless there is pending in this court, either by appeal or writ of error, a proceeding which will be interfered with by the action of some other court, or unless an order or mandate entered in the exercise of the appellate jurisdiction of this court is being interfered with or endangered by the action of some other court. The petition before us discloses that the decree in Jenkins v. Talbot,
For the reason that I believe the award of the writ is not in aid of the appellate jurisdiction of this court I am compelled to dissent from the majority opinion.
Dissenting Opinion
With due deference to the majority opinion, it seems clear to me that this court does not have jurisdiction to entertain this original application for a writ of prohibition. It is, of course, conceded in the majority opinion that this court has no original jurisdiction to issue writs of prohibition and that it can issue such writs only in aid of its appellate jurisdiction. (People v. Circuit Court,
The former appeal in Jenkins v. Talbot,
When a superior court affirms a decree it simply decides that there is no error in the decree and that the decree of the lower court should therefore stand. The superior court does not, by affirming, either adopt the decree of the inferior court as its own or promulgate as its decree the decree of the inferior court. It is only when the superior court either enters a decree of its own (other than a mere affirmance) or directs the inferior court to enter a particular decree that the decree entered can be considered in any sense the decree of the superior court. (Smith v. Dugger, *50
The only case in this State which deals with this question isPeople v. Superior Court,
The discussion in the opinion in that case shows that it was because of this statutory provision and the nature of the judgment entered by this court in criminal cases that the court held it had jurisdiction to entertain the certiorari proceeding. Thus, the following language and thought permeate the entire discussion on this question: "Here we have affirmed the judgment of the criminal court and have directed that it be carried into effect." And in concluding the discussion on this subject the court said: "Under such circumstances a writ ofcertiorari may properly issue from this court in aid of and to protect the appellate jurisdiction of this court and to prevent an unlawful interference with the execution of the sentence which this court has directed the criminal court to carry into effect." In the present case, however, and in all other civil cases where this court on appeal or writ of error merely affirms a judgment or decree, there is no reason whatever for holding that by affirmance this court either adopts the judgment or decree of the trial court or promulgates it as the judgment or decree of this court. A mere affirmance in this respect has no more effect than if the judgment or decree of the trial court had never been appealed from. It is the judgment or decree of the trial court which is effective as resjudicata and not any judgment or decree of this court. Interference with the decree of a trial court in such case is not in any sense an interference with a decree of this court. It is not in any sense an interference with or encroachment upon the appellate jurisdiction of this court. Whatever power this court might have to protect its appellate jurisdiction in a case still pending before it, or in a case where this court had entered or directed the entry by the trial court of a particular decree, no such power exists to protect *52 a decree of a trial court which this court has merely held was free from error.
The only other decisions cited on this point in the majority opinion are City of Palestine v. City of Houston, 262 S.W. (Tex.) 215, and State v. White,
In the case before us the majority opinion seeks to show that it is the judgment of this court which has been interfered with by the circuit court of Washington county. Thus it states: "The judgment of this court which the temporary injunction of the respondent court was designed to affect was that section 42 of the by-laws as amended was a valid and legal by-law, and that judgment therefore necessarily fixed the right of the petitioner society to collect the assessment provided for by that by-law, and the temporary injunction could have no other effect than to obstruct that judgment." In my opinion that language discloses the fallacy of the majority opinion. This court entered no such judgment as that referred to. The decree sustaining the validity of the by-law was the decree of the trial court. All this court did was to say that the decree of the trial court was free from error. The opinion of this court or the reasons therein stated do not constitute a "judgment" in the sense here used. The only judgment of this court in the case is a formal one, merely affirming the decree of the circuit court of Cook county. It is only the decree of the circuit court, and not the judgment of affirmance by this court, which is affected by the proceeding in the circuit court of Washington county, and this court has no power to issue a writ of prohibition to protect the decree of the trial court.
Moreover, it seems clear that the decision of this court denying the former application for a writ of prohibition in this case is conclusive upon the right to issue the writ upon the present application. When the former application was made to this court for the writ of prohibition the bill for injunction had been filed in the circuit court of Washington *54
county. That court either had or did not have jurisdiction to entertain that proceeding at that time. If that court had no such jurisdiction at that time, and if this court had power to issue the writ in a case of this kind, the former application for the writ of prohibition should have been granted. By denying the writ of prohibition on October 11, 1930, this court necessarily decided that the circuit court of Washington county had jurisdiction of the subject matter and power to render some decision in the case. Clearly, the denial of the writ of prohibition at that time amounted to a holding that the circuit court could entertain the proceeding and render a decision. If the circuit court had such jurisdiction at that time its jurisdiction is not at all affected by reason of the fact that it has made, or may make, a decision for complainants rather than for defendants in that case. "Jurisdiction is the power to hear and determine the matter in controversy between parties, and if the law gives the court power to render a judgment or decree then the court has jurisdiction. Jurisdiction does not depend upon the correctness of the decision and is not lost by an erroneous decision." (Lyon Healy v. Piano Workers' Union,
Where a superior court, on appeal, expressly directs the inferior court to enter a certain judgment or decree, it is, of course, the duty of the inferior court to do so. It can not take any other or different action than that directed by the superior court, (Fisher v. Burks,
The majority opinion takes the view that an appeal would not have constituted an adequate remedy for the protection of the defendant in that case. With deference, it seems to me that the question of expediency and the necessities of the petitioner, if it has any proper place in this case, should not be made the controlling consideration in determining the jurisdictional question. The argument is, that unless the writ of prohibition is issued the interlocutory injunctional order will prevent the petitioner from collecting large sums of money as premiums at the increased rate and so will damage its business. But if the petitioner will be so injured, it is apparent that in the absence of the injunctional order the one million members of the petitioner will be injured to the same extent by being required to pay that amount of money in increased rates. The question which this court has undertaken to decide is whether the original decree of the circuit court of Cook county constitutes res judicata in the present suit in the circuit court of Washington county. That is a question of which the latter court has jurisdiction and which it should decide *56 on the record before it without interference by this court. If, whenever this court affirms a judgment or decree of a trial court, it is to follow the case and ascertain whether a new suit is instituted on the same cause of action, and, if so, to issue a writ of prohibition against the trial court, there will be no end to the number of such applications which this court will be called upon to grant. The great number of cases in which the question of res judicata is raised attests this. I know of no case where this court has undertaken to transfer to itself a question of that kind properly before a trial court for decision, even where the decree was a decree entered or directed by this court. Much less reason is there for this court to protect a decree entered by a trial court, which is not in any sense the decree of this court.
Even assuming that the decision in this case should be placed upon the ground of expediency, does it appear that the petitioner was without adequate remedy except by the application for a writ of prohibition? Under the provisions of section 123 of the Practice act (Cahill's Stat. 1931, chap. 110, par. 122, p. 2189,) the defendant was entitled to appeal immediately from the injunctional order. The appeal could have been perfected in a few days, and would, by virtue of the statute, take precedence over other causes in the Appellate Court and a prompt decision could have been obtained. As it is, the decision of this court in the present case was not rendered until more than a year after the date of the injunctional order. Furthermore, if the circuit court of Washington county had no jurisdiction to entertain the bill for an injunction, as the majority opinion holds, the defendant in that case could have filed a bill for an injunction restraining the complainants from prosecuting that suit, or it could have applied to this court for a writ of mandamus to expunge the injunctional order on the ground it was void, and this court, having original jurisdiction in mandamus, could have granted that relief. *57
In view of the remedies which were available to petitioner, and in my opinion clearly adequate, I see no reason or justification for the exercise of a jurisdiction (by writ of prohibition) which in my judgment the court does not have in such a case. So far as I have been able to ascertain, litigants have sought to invoke the jurisdiction of this court to grant a writ of prohibition in only three cases during the past century, and it is significant that this jurisdiction has not been exercised in a single case. The closest approach to the exercise of such a jurisdiction by this court was inPeople v. Superior Court, supra, where the court issued a writ of certiorari. But, as above stated, jurisdiction clearly appeared in that case by reason of the fact that this court had done something more than merely to approve a judgment of the trial court. There, in obedience to a statute, the court not only affirmed the judgment but also "directed that it be carried into effect." In view of that distinguishing and controlling circumstance the decision not only fails to support the majority opinion in the present case but is an authority against it.
For the above reasons I am of the opinion that the application for the writ of prohibition should have been denied.
