71 P. 906 | Ariz. | 1903
In this case Louisa J. Sanford has brought an original action in this court to obtain a writ of prohibition directed to the district court of Pima County and the judge thereof to prevent the enforcement of a judgment rendered-by said court in a suit wherein the city of Tucson was plaintiff and the said Louisa J. Sanford one of the defendants, condemning property of the latter for street purposes. Prom this judgment an appeal was taken to this court, which has been heard and determined at this term. Ante, p. 247, 71 Pac. 903. The judgment was reversed upon the ground that the complaint omitted to contain the necessary allegation that the taking of the property sought to be condemned was necessary for the enjoyment of a public use.
It appears that when this action was brought the case had gone to judgment, and the city of Tucson had, under the order of the district court, taken possession of the property condemned. A writ of prohibition cannot be made to perform the functions of an appeal. Its object is to prevent a usurpation of jurisdiction, and not the correction of errors. Accordingly, it has'been held that the writ will not issue in a case where the trial court was proceeding in an equitable proceeding in which the bill omitted to state necessary averments of fact. Ex parte Greene, 29 Ala. 52. We held, on the appeal, that the city of Tucson possesses the right of eminent domain under the territorial statutes, and may exercise that right for purposes of street improvement, and that the district court has jurisdiction of a suit brought for the enforcement of this right. The judgment was reversed because of an erroneous ruling, which did not affect the question
Again, as said by the supreme court in United States v. Hoffman, 4 Wall. 158, 18 L. Ed. 354, “The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest that the writ cannot undo it.” As we have said, the court, at the time of the bringing of this action, had rendered its judgment, and had let the city into possession, and had, therefore, done all that it could do in the premises. The prevention of any further proceedings by the trial court would, therefore, afford plaintiff no relief.
Eor these reasons the peremptory writ is denied at the cost of plaintiff.
Kent, C. J., and Doan, J., concur.