Bullard v. Thorpe

• Decision Date: 14 August 1894
• Citation: 30 A. 36,66 Vt. 599
• Parties: BULLARD v. THORPE et al.
• Court: Vermont Supreme Court

30 A. 36

66 Vt. 599

BULLARD

v. THORPE et al.

Supreme Court of Vermont Franklin.

Aug. 14, 1894.

Exceptions from Franklin county court.

Petition for writ of prohibition by A. F. Bullard against George W. Thorpe, Myron Buck, attorney, and Henry C. Greene, justice of the peace, to restrain proceedings in trover. Writ granted.

Dee & George, for petitioner.

M. Buck, for petitionees.

TAFT, J. This is the first instance in this state, within our knowledge, of a petition for a writ of prohibition. No mention is made of one in our Reports, and it is first mentioned in legislation in the revision of 1839, when the supreme court was given power to grant one. That provision still exists in R. L. § 782. The writ may issue if "necessary to the furtherance of justice and the regular execution of the laws." The proceedings to obtain one are regulated by R. L. c. 74. The object of the writ in this jurisdiction can be accomplished generally by appeal, exception, or writ of error. One never Issues if there is other adequate remedy. It is an ancient and valuable writ, the use of wnich in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the constitution and laws of the state, it has been intrusted. The writ is so ancient that forms of it are given in Glanville (Beames' Translation) pp. 56, 97, et seq.,—the first book of English law, written in 1189,—and mention is made of it in nearly all the treatises upon the common law, and the early reports. The object and scope of the writ is stated in 3 Bl. Comm. 112, as "a writ directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court." The writ goes against "as well the party and his counsel as the judge himself." 5 Jac. Law Diet (1st Am. Ed.) 316. If a court has no jurisdiction of a cause, nor of a collateral matter incidental thereto, prohibition is an appropriate remedy, if the party aggrieved has no other relief. The remedy is a liberal one, and is not to be applied sparingly. It was so far extended that in Bracton's time (6 Bract, Twiss' Ed., 245) it was said in case an inferior justiciary took jurisdiction of a matter rightfully, and a superior court bad cognizance of the same matter, "the superior tribunal ought to be preferred to the inferior, and, if [the tenant] has shown to the superior court that he has been impleaded concerning the same thing in an inferior court a prohibition shall issue on the part of the king that proceedings shall not be taken on that plea in the inferior court." In Quimbo Appo v. People, 20 N. Y. 531, Selden, J?speaks of the "broad remedial nature" of the writ, and says that it "was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed."

The writ does not lie to prevent errors and irregularities in the proceedings if the matter adjudged is within the jurisdiction of the tribunal. Toft v. Rayner, 57 E. C. L 162. It is no part of its office to prevent or correct errors in questions of which the court has cognizance. It is to prevent the unlawful assumption of jurisdiction, and it may be either jurisdiction of the entire subject-matter, or of something collateral or incidental thereto. It "lies to prevent the exercise of any unauthorized power in a cause of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction." One general ground of prohibition is that, though the subject-matter of suit is within the proper jurisdiction of an inferior tribunal, yet that in some collateral or incidental matter it is proceeding contrary to the common law or some statutory provision. Thus, it would seem, if we pursue these principles, that the courts have authority by this proceeding to supervise the execution of the laws, not merely by keeping inferior tribunals within their proper jurisdiction, but also by enforcing a correct execution of the laws, as well the common as the statute law. Jacob says: "Or if, in handling the matters clearly within their cognizance, they [the courts] transgress the bounds prescribed to them by the laws of England, * * * a prohibition will be awarded." Upon the principal points above noted, the following cases may be referred to: 5 Jac. Law Dict 317; Gould v. Gapper, 5 East, 364; Brymer v. Atkins, 1 H. Bl. 164; Darby v. Cosens, 1 Term R. 552; Leman v. Goulty, 3 Term R. 3; State v. Hopkins, Dud. (S. C.) 101; State v. Hudnall, 2 Nott & M. 424; State v. Ridgell, 2 Bailey, 560; State v. Nathan, 4 Rich. Law, 513; Ex parte Williams, 4 Ark. 537; Quimbo Appo v. People, 20 N. Y. 531; High, Extr. Leg. Rem. c. 31.

It has been held that prohibition will not lie if the inferior court has prima facie jurisdiction; i. e. if, upon the face of the papers, the cause is within its cognizance. It was so held in State v. Judge of Superior Dist. Ct, 29 La. Ann. 360. This does not seem to be just, for a plaintiff thereby may be enabled to recover upon a claim that is without the jurisdiction of a court by framing his declaration showing a cause of action within it. We think the rule in such cases has been to grant such writs upon showing by evidence, aliunde the record, that the court had no jurisdiction. In an anonymous case (I. P. Wms. 476) it is said: "A prohibition lies in chancery on affidavit that the matter is out of the jurisdiction; but no affidavit is necessary if, on the face of the declaration, the matter appears to be out of the jurisdiction." In a suit for tithes the tenant pleads that the party who sues is not incumbent, but that J. S. is. In this case it does not appear on the face of the papers that the court has no jurisdiction; "yet a prohibition must go, 'or else he [the tenant] shall be charged twice for his tithes.'" Green v. Penilden, Cro. Eliz. 228. These cases recognize the doctrine that prohibition may lie if the lack of jurisdiction does not appear upon the face of the papers. It is in cases in which there can be no appeal that a writ of prohibition is frequently applied for. Justices in a bastardy proceeding allowed an appeal to the general sessions. The latter court, denying the motion to dismiss the appeal, were proceeding to try the case when the alleged putative father applied to the supreme court for a mandamus to the sessions to vacate the order entertaining the appeal, or other remedy. The supreme court, holding that there was no appeal, said: "It is a case for a prohibition, instead of a mandamus. Let the order be made accordingly." People v. Tompkins, 19 Wend. 154. One had been tried, convicted, sentenced, and sentence executed. He was subsequently tried, convicted, and condemned to death, there being no appeal, for the same offense. A prohibition was granted to restrain the execution, which was confirmed unanimously by the court of apeals. Ex parte Brown, 2 Bailey, 323. A court entered judgment of death for an offense not capital. The error could not be corrected by appeal. The court held that, although the cause and person were within the jurisdiction of the court, it transgressed the bounds prescribed by law, and granted a prohibition. State v. Ridgell, Id. 560.

One can conceive of many instances in which the writ may be the only remedy. A justice of the peace takes cognizance of a suit not appealable, upon a claim of which he is the absolute owner. A person convicted of, and sentenced to be hung for, murder, after he has been acquitted of the same offense, his exceptions having failed without his fault. An inferior court proceeds to execute a judgment, notwithstanding an appeal. What remedy is there in such cases save a writ of prohibition? The petitioner has established the substantial allegations of his petition. Stripped of its verbiage, the case is this: The petitionee Thorpe pawned to the petitioner nine items of personal property, valued at $40, to secure the loan of about $25. That the petitioner has sold, upon due notice, a part of the property, and received therefor about the sum of $12; and that there still remains due him about as much more, which the petitionee Thorpe refuses to pay. That Thorpe, by his attorney, Buck, has begun a series of suits in trover for the items of the property so pawned bringing a separate suit for each item, before the petitionee Greene, a justice of the peace, placing the ad damnum in the writ at $20, so that no...