Bender v. Eaton

CourtUnited States State Supreme Court (Kentucky)
Citation343 S.W.2d 799
PartiesJoseph P. BENDER et al., Petitioners, v. Hon. C. Warren EATON, Judge of McCracken Circuit Court, Respondent.
Decision Date03 March 1961

Page 799

343 S.W.2d 799
Joseph P. BENDER et al., Petitioners,
v.
Hon. C. Warren EATON, Judge of McCracken Circuit Court, Respondent.
Court of Appeals of Kentucky.
March 3, 1961.

Page 800

William B. Bryd, Waller, Threlkeld, Whitlow & Byrd, Paducah, for petitioners.

Terrell, Schultzman & Hardy, Paducah, for respondent.

CLAY, Commissioner.

This is an original proceeding for an order prohibiting respondent from enforcing his circuit court order which requires petitioners to produce and permit an adverse party to inspect, copy or photograph medical reports of a number of physicians. The question involves the application of Rule 37.02 of our Civil Rules.

Although the point has not been raised by respondent, we have considered the propriety of the present procedural device as a means of questioning an interlocutory order of this nature. A special problem has arisen under our relatively new Rules of Civil Procedure when it is claimed the circuit court, by the entry of a pre-trial order, is proceeding erroneously. We will briefly re-examine the power, duty and method of this Court in the exercise of its original jurisdiction.

By section 110 of the Kentucky Constitution the Court to Appeals is given very broad supervisory control of lower courts. The exercise of this authority has no limits except our judicial discretion, and each case must stand on its own merits. Renshaw v. Cook, 129 Ky. 347, 111 S.W. 377; Rush v. Denhardt, 138 Ky. 238, 127 S.W. 785; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Harrod v. Meigs, Ky., 340 S.W.2d 601.

Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. This careful approach is necessary to prevent short-circuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other courts. If this avenue of relief were open to all who considered themselves aggrieved by an interlocutory court order, we would face an impossible burden of nonappellate matters.

Through the years this Court has consistently divided into two classes those cases in which we are called upon to exercise original jurisdiction. The distinguishing feature is whether the inferior court allegedly is (1) acting without jurisdiction (which includes 'beyond its jurisdiction'), or (2) acting erroneously within its jurisdiction. We are not now concerned with the first class of cases in which the controlling factors may be somewhat different from those which generally apply to the second class. See Chamblee v. Rose, Ky., 249 S.W.2d 775.

Page 801

In the second class of cases relief ordinarily has not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied). See Manning v. Baxter, 281 Ky. 659, 136 S.W.2d 1074; Smith v. Shamburger, Judge, 314 Ky. 850, 238 S.W.2d 844. This is a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy. As a general rule, if he has an adequate remedy by appeal or otherwise, or will not suffer great and irreparable injury, the petition should be dismissed forthwith.

Our cases involving controversies in this second class, where it is alleged the lower court is acting or proceeding erroneously within its jurisdiction, have consistently (apparently without exception) required the petitioner to pass the first test; i. e., he must show he has no adequate remedy by appeal or otherwise. In determining the adequacy of another remedy it may be necessary to examine the injurious consequences pending such other relief, but so far as possible tests (a) and (b) should be considered separately.

After passing test (a) the proper procedural method is to apply test (b) to determine whether or not the petitioner, even though lacking an alternate adequate remedy, will suffer great and irreparable injury. This means something of a ruinous nature. Osborn v. Wolfford, 239 Ky. 470, 39 S.W.2d 672; Reeves v. Bell, 285 Ky. 300, 147 S.W.2d 711. Ordinarily if this cannot be shown, the petition will be dismissed.

Test (b) however, unlike test (a), is not an absolute prerequisite. See Clapp v. Sandidge, 230 Ky. 594, 20 S.W.2d 449. In Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181, it was held that in exceptional cases the remedy may be invoked as a 'shield from injustice * * * to preserve the the orderly administration of the laws.'

Thus we find that in certain special cases this Court will entertain a petition for prohibition in the absence...

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261 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) ("The exercise of this authority has no limits except our judicial discretion."). Because writs interfere with both the orderly, even i......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) ("The exercise of this authority has no limits except our judicial discretion."). Because writs interfere with both the orderly, even i......
  • Radford v. Lovelace, No. 2005-SC-1024-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 15, 2006
    ...petitions for and in granting such relief.'" Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004)(citing Bender v. Eaton, 343 S.W.2d 799 (Ky.1961)). Writs are generally divided into two classes and are distinguished by "`whether the inferior court allegedly is (1) acting with......
  • Metropolitan Property & Cas v. Overstreet, No. 2002-SC-0032-MR.
    • United States
    • Kentucky Supreme Court
    • April 24, 2003
    ...v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) ("`once the information is furnished it cannot be recalled'") (quoting Bender v. Eaton, Ky., 343 S.W.2d 799, 802 (1961)), we, too, will proceed directly to the merits of the appeal. For the reasons set forth infra, we affirm the Court of Appeals ......
  • Request a trial to view additional results
261 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) ("The exercise of this authority has no limits except our judicial discretion."). Because writs interfere with both the orderly, even i......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) ("The exercise of this authority has no limits except our judicial discretion."). Because writs interfere with both the orderly, even i......
  • Radford v. Lovelace, No. 2005-SC-1024-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 15, 2006
    ...petitions for and in granting such relief.'" Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004)(citing Bender v. Eaton, 343 S.W.2d 799 (Ky.1961)). Writs are generally divided into two classes and are distinguished by "`whether the inferior court allegedly is (1) acting with......
  • Metropolitan Property & Cas v. Overstreet, No. 2002-SC-0032-MR.
    • United States
    • Kentucky Supreme Court
    • April 24, 2003
    ...v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) ("`once the information is furnished it cannot be recalled'") (quoting Bender v. Eaton, Ky., 343 S.W.2d 799, 802 (1961)), we, too, will proceed directly to the merits of the appeal. For the reasons set forth infra, we affirm the Court of Appeals ......
  • Request a trial to view additional results

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