Wоlfe seeks a writ prohibiting the circuit court of Marion County from proceeding further in the personal injury case of Clara Miller against himself and one Wallace Pfeifer. The injury declared on was sustained in an automobile accident in Mariоn County, the cars involved being driven by Wolfe and Pfeifer, respectively. The former is a substantial citizen of Gilmer County, and the latter a young man under twenty-one years of age, of Brooke County.
The circuit court’s jurisdiction was challenged by plea in аbatement, which alleged in effect that Pfeifer had been joined as a party defendant and served with process in Marion County as a part of a fraudulent scheme to acquire jurisdiction over Wolfe in said county. The plea was held good on demurrer. Evidence was submitted on behalf of petitioner in support of the plea. The trial court sustained a dеmurrer to the evidence on the ground that it failed to sustain the charges of the plea. And to this ruling, the petitioner herein duly еxcepted.
Where there are several parties defendant, all of whom are residents of counties other than the one in which the cause of action arose, if service is had on one of their number within the county in which the causе of action arose, process may be directed to the respective counties in which the remaining defendants reside. Code 1931, 56-1-2. Had Wolfe been the only defendant, venue under the foregoing section would be dependent upon personal service in Marion County. But the pleading sets up a case against Pfeifer as well as Wolfe. And service of рrocess was had on Pfeifer in Marion County. So prima facie, the circuit court of Marion County had jurisdiction of the subject matter.
It apрears from the evidence adduced in support of the plea that Clara Miller, a Miss Tyree, William Pfeifer and *737 Lillie Pfeifеr (the latter two being father and mother, respectively, of Wallace Pfeifer), were in the ear driven by Wallace Pfeifer; that the ear belonged to Clara Miller; that the five were on their way to a ball game in Lewis County when the accidеnt occurred; that sometime thereafter Wallace Pfeifer was induced to come to Fairmont, Marion County, by Clarа Miller’s attorneys, and while there presumably in reference to his ease against Wolfe, which had been brought in Gilmer County, was served with process in separate actions instituted by the same attorneys on behalf of Clara Miller, William Pfei-fer and Lillian Pfeifer against him and Wolfe; that these several plaintiffs testified in Wallace Pfeifer’s action against Wolfe in plaintiff’s favоr; that plaintiff Clara Miller in the action now sought to be prohibited testified before the court that she had no claim against Pfeifer and that she held him blameless of any of! the alleged damages resulting to her by reason of the accident. Without further comment on the evidence it suffices to say that the Court is of opinion that it was sufficient to sustain the charges in the plеa; hence the demurrer to the evidence should have been overruled and the action abated.
But is prohibition thе proper remedy, or must petitioner herein awa-it a possible adverse judgment, and attack the court's ruling on his plea in abatement by writ of error?
The law is well settled in this state that a writ of prohibition may not be used to usurp or perform the functions of an appeal, writ of error or certiorari. In other words, the office of the writ is to prevent an unlawful assumption of jurisdiction, not to correct mere errors and irregularities in matters over which the inferior court has cognizance.
King
v.
Doolit
tle,
Whether or not the matter of jurisdiction could have been raised in this Court in the first instance, in view of the
prima facie
jurisdiction of the court over both the subject matter and the parties, is not before us. See
Cunard Steamship Company
v.
Hudson,
Should the mere fact that the court had prima facie jurisdiction upon the face of the pleading and process extend its authority over the case to judgment? Wolfe’s exception to the action of the lower court in sustaining the demurrer to the evidence would, of course, preserve his right to raise the question again on writ of error, should an adverse judgment be entered against him. But why permit the trial to go on? A trial as to Wolfe would be futile, because any judgment rendered against him would ultimately have to fall if challenged on a writ of error.
In Montana thq right to issue the writ in аll cases where there is not a plain, speedy and adequate remedy in the ordinary course of law, is conferred by statute. And in
State ex rel. Lane
v.
District Court,
In view of the case presented, this Court is of opinion to grant a peremptory writ, in conformity to the prayer of the petition.
Writ awarded.