206 P. 272 | Utah | 1922
The plaintiffs herein, in due form, made application to this court, praying for an alternative writ of prohibition against Hon. Ephraim Hanson, judge of the district court of Salt Lake county. The application has been treated by the parties- to this proceeding, and will be treated by this court as directed against the district court of Salt Lake county, as well as against the Hon. Ephraim Hanson, Judge.
An alternative writ was duly issued to which the defendant made answer and demurred at the same time. No material issue being presented by the answer, the case was submitted on the demurrer by counsel representing the respective parties to this proceeding. By the demurrer to the application plaintiffs’ legal right to the writ of prohibition is challenged, and that presents the principal question for decision in this proceeding.
The undisputed facts make it, in many respects, one of the most complicated, and, we may say one of the most unique, proceedings that has ever come before this court so far as its records disclose. We shall refrain from stating the facts as they are alleged in the application for the writ, but shall, as briefly as possible, state them as they are made to appear from the record and the proceedings had in the district court, all of which have been duly certified to this court, and are made exhibits to and a part of plaintiffs ’ application.
Prom the proceedings as certified up it is made to appear that, on the 16th day of November, 1921, the Pioneer Sugar
We have thus, in the briefest possible terms, stated the salient facts which are disclosed by the 886 typewritten pages in the record certified to this court.
It will be observed that, although an action was regularly commenced by the Pioneer Sugar Company by filing its complaint in the district court of Salt Lake county, yet in that action no summonses were ever issued, and no appearance was ever made by any one of the defendants named therein. While, therefore, an action was technically pending in the district court for the purpose of tolling the statute of limitations, when, in December, the. several persons and corporations filed their motions supported by their cross-complaints in intervention, yet the district court had not acquired jurisdiction of any one of the defendants named in that action at that time, or at any time. Let it be kept in mind that the action of the Pioneer Sugar Company was merely to maintain the. status quo as hereinbefore stated, and no attempt was made in that action to interfere with any of the rights of the socalled interveners. True, it is contended that the Pioneer Sugar Company prayed judgment that the 1,034 makers of .the notes be enjoined from paying them, or any of them, to the defendant Woolley, but no restraining order or injunction of any kind was ever issued, much less served, on any of the defendants. They were not even served with process of any kind. In' view, therefore, that the so-called interveners in positive terms alleged in their cross-complaints that they had acquired the notes in question before due for value and in due course, and that they are the legal owners and hloders thereof, it is hard to understand how their rights were invaded or affected by the mere filing of the complaint by the Pioneer Sugar Company without more.
Assuming, however, that the interveners might have been
In view of the state of the action of the Pioneer Sugar Company, however, and in view that the so-called interveners in positive terms alleged that they are the legal owners and holders in due course of the notes in question, their rights were in no way jeopardized or affected, and the district court should promptly have declined to permit them to intervene in this action, and in ño event should it have permitted them to intervene for the purposes stated in the so-called cross-complaints. Moreover, the court should have declined to permit the so-called interveners to file their affidavits for garnishment or to take any steps in the Pioneer Sugar Company action by which it was contemplated to obtain judgments against the makers of the notes in question.
Without pausing now to refer to our former decisions wherein the conditions and circumstances under which this court will interfere by prohibition or when it will not do so are stated, and without in any way departing from the law as it is there laid down, we, nevertheless, are forced to the conclusion that in view of the undisputed facts of this case we have no alternative save to grant a peremptory writ of prohibition in this ease. What the district court attempted to do, and what it did, in view of the record, to our minds, was clearly in excess of jurisdiction, and it should be restrained from proceeding any further against the plaintiff’s herein under the so-called cross-complaints or in the action commenced by the Pioneer Sugar Company.
We could subserve no good purpose in attempting to review the authorities relied on by the attorneys representing the respective parties to this proceding. It must suffice to say that none of them is in point here or has any appli
It is, however, insisted by counsel representing the district court that the plaintiffs herein had entered a general appearance by filing a motion to quash the several writs of garnishment which were issued and served upon the garnishees. There is no merit to the contention. The appearance was a special one, and was made for the sole purpose of assailing the jurisdiction of the district court in making the orders complained of. It is well settled that any one who has been made a party to an action and upon whom no personal service of process has been made, and who has not entered a general appearance, whose property has been attached by a writ of garnishment or otherwise, may appear specially for the purpose of assailing the court’s jurisdiction and move to quash the writ of garnishment. Davis v. Cleveland, etc. Ry. Co., 217 U. S. 157, 30 Sup. Ct. 463, 54 L. Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907.
We have carefully read the motion to quash, which was interposed by the plaintiffs, and there is nothing contained therein from which the court had the right to conclude that the appearance was a general rather than a special one. Nor did the plaintiff ask for anything that could not properly be asked for under a special appearance. In such matters the courts always keep in mind the substance rather than the mere form of things.