State v. Wilcox

Citation24 Minn. 143
PartiesSTATE OF MINNESOTA <I>ex rel.</I> B. H. CHESLEY <I>vs.</I> JOHN D. WILCOX.
Decision Date22 September 1877
CourtSupreme Court of Minnesota (US)

Palmer & Bell, for relator.

William Barrett, for respondent.

GILFILLAN, C. J.

Kanabec county is, and has been since 1858, an "established" county, and since 1871 has been attached for judicial purposes to Pine county, which is an "organized county." One Anderson, a single man and unnaturalized Swede, who had been in this state but three months, ten weeks of which he lived with an uncle in Kanabec county, and afterwards worked as a common laborer ten days in Pine county, became insane, and proceedings under the statute were instituted before the respondent, judge of probate of Pine county, which resulted in Anderson's commitment to the hospital for insane. The judge of probate thereupon entered a judgment or order for the costs, fees and disbursements in the matter, to be paid out of the county treasury, by the county treasurer of Kanabec county, upon the written order of the judge of probate, under the seal of his court, and afterwards issued a written order, under the seal of his court, directing the treasurer of Kanabec county to pay such fees and disbursements. The matter of paying them appears to have been laid before the county commissioners of that county, and they directed the treasurer not to pay them, and he refused to pay them. The judge of probate thereupon issued an order requiring the relator, the county treasurer of Kanabec county, to show cause why he should not be punished as for a contempt in disobeying said order.

The proceeding here is an application for an absolute writ of prohibition restraining the respondent from proceeding further in the matter. It is based necessarily on the assumption that the judge of probate, in the attempt to enforce payment of the fees by the relator, is proceeding or about to proceed beyond his jurisdiction.

A preliminary objection is made by the respondent that the writ of prohibition will not lie because the question of jurisdiction in the proceedings contemplated by the judge of probate must first be raised before and passed upon by him, and because the writ will not lie when there is an adequate remedy by appeal or writ of error.

If it be a correct proposition that the want of jurisdiction must be pleaded, and the plea refused, in the subordinate tribunals before the writ will issue — and we doubt its correctness, except where it occurs in an ordinary action — it can have no application to this case, for the judge of probate must be presumed to have considered and passed upon the question of jurisdiction in making the order upon which his subsequent proceeding is based.

The rule laid down by some text writers and decided cases, that the writ of prohibition is not a proper remedy when there is an adequate remedy by appeal or writ of error, is not one of universal application. It is undoubtedly correct as applied to a case where, in the course of an ordinary action, the court attempts to decide upon matters not within its jurisdiction, for all errors of that description are best corrected by the usual remedy of an appeal, writ of error, or certiorari. To extend the rule further than that would almost entirely abolish the writ. There are very few proceedings of a judicial character in which a party aggrieved by a usurpation of jurisdiction may not, either by some mode of review and correction, or by an action of trespass or otherwise, have an adequate remedy for the wrong. But we do not find any decision that in extraordinary proceedings the existence of such a remedy shall be ground for a refusal of the writ. The power of the court to issue the writ in such cases was distinctly affirmed in Leman v. Goulty, 3 Term, 3; and Appo v. The People, 20 N. Y. 531. The case before us is a proper one for the writ.

Two questions of jurisdiction are raised — one going to the authority of the judge of probate to proceed at all in the matter of Anderson as an insane person, the other to his authority to enforce payment of these fees by proceedings for contempt.

The first of these questions is based upon the...

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