Conkling v. De Lany

• Citation: 91 N.W.2d 250,167 Neb. 4
• Decision Date: 27 June 1958
• Docket Number: No. 34373,34373
• Parties: Donald G. CONKLING, Ora Spence and Norman C. Jensen, Appellants, v. Alma K. DE LANY, Justice of the Peace, Appellee.
• Court: Supreme Court of Nebraska

Page 250

91 N.W.2d 250

167 Neb. 4

Donald G. CONKLING, Ora Spence and Norman C. Jensen, Appellants, v. Alma K. DE LANY, Justice of the Peace, Appellee.

No. 34373.

Supreme Court of Nebraska.

June 27, 1958.

Syllabus by the Court

1. The common law writ of prohibition is available to litigants in this state and jurisdiction to grant the same is lodged in the district courts thereof.

2. The writ of prohibition is an extraordinary writ, issued by a superior court to an inferior judicial tribunal to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from exceeding its legitimate powers in a matter of which it has jurisdiction.

3. Ordinarily prohibition cannot be resorted to when the ordinary and usual remedies provided by law are adequate and available as it is not intended to be a substitute therefor.

4. However, the function of the writ has been extended to cover situations where, even though the inferior tribunal has jurisdiction, the superior court deems it necessary and advisable to issue the writ to prevent palable and irremediable injustice, especially when it appears there exists no adequate remedy by appeal or therwise to prevent such from occurring.

5. Every person accused of crime should have a fair and impartial trial.

6. A party has a right to have his case heard and determined by a judge who is not disqualified by interest from hearing and determining it.

7. Prohibition may, in the court's discretion, be granted in a proper case where the remedy by appeal or error is not adequate and, in this respect, each case must depend upon its own facts.

Beatty, Clarke, Murphy & Morgan, Donald W. Pederson, Frank E. Piccolo, Jr., James E. Schneider, North Platte, for appellants.

Donald V. Lowe, J. G. McIntosh, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE and BOSLAUGH, JJ.

WENKE, Justice.

This is an appeal from the district court for Lincoln County. It involves the question of whether or not a writ of prohibition should be issued against Alma K. DeLany, a justice of the peace. The trial court denied the appellants such relief by dismissing the action and they have taken this appeal therefrom after their motion for new trial had been overruled.

Nebraska has, with certain limitations and restrictions not applicable here, adopted the common law of England. See § 49-101, R.R.S.1943. Consequently the common law writ of prohibition is available to litigants in this state and jurisdiction to grant the same is lodged in the district courts thereof. See State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676.

However, with regard to our adoption of the common law of England we said, in Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 708, 96 N.W. 151, 62 L.R.A. 383, 110 Am.St.Rep. 431, that: 'The term 'common law of England,' as used in the statute, refers to that general system of law which prevails in England, and in most of the United States by derivation from England, as distinguished from the Roman or civil law system, which was in force in this territory prior to the Louisiana purchase. Hence the statute does not require adherence to the decisions of the English common-law courts prior to the Revolution, in case this court considers subsequent decisions, either in England or America, better expositions of the general principles of that system.' And in State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232, 234, we held: 'The common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.'

In State ex rel. Wright v. Barney, supra [133 Neb. 676, 276 N.W. 682], by quoting from High, Extraordinary Legal Remedies (3d Ed.) 705, we said: "The writ of prohibition may be defined as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. It is an original remedial writ, and is the remedy afforded by the common law to correct encroachments of jurisdiction by inferior courts, and is used to keep such courts within the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law entrusted." See, also, 73 C.J.S. Prohibition § 2 b, p. 13; State ex rel. Micheel v. Vamos, 144 Ohio St. 628, 60 60 N.E.2d 305; Marsh v. Goldthorpe, 123 Ohio St. 103, 174 N.E. 246; State ex rel. Burtzlaff v. Vickery, 121 Ohio St. 49, 166 N.E. 894; State ex rel. Burford v. Sullivan, 86 Okl.Cr. 364, 193 P.2d 594; State ex rel. Wester v. Caldwell, 84 Okl.Cr. 334, 181 P.2d 843; Harrison v. Murphy, 132 Fla. 579, 181 So. 386; State ex rel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575; 42 Am.Jur., Prohibition, s. 6, p. 142. In State ex rel. Burford v. Sullivan, supra [86 Okl.Cr. 334, 181 P.2d 601], by quoting from Rose v. Arnold, 183 Okl. 286, 82 P.2d 293, the court said: "'Prohibition' is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, and its use in proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined to the exercise of those powers with which it has been by law intrusted." And, as stated in Van Dyke v Superior Court of Gila County, 24 Ariz. 508, 211 P. 576, 580, by quoting language from In re Rice, 155 U.S. 402, 15 S.Ct. 152, 39 L.Ed. 201: "Where it appears that a court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary." See, also, 42 Am.Jur., Prohibition, s. 7, p. 143; Redewill v. Superior Court of Maricopa County, 43 Ariz. 68, 29 P.2d 475.

In State ex rel. Wright v. Barney, supra, we went on to say, by quoting from 21 Standard Encyclopedia of Procedure, 801, that: "The writ of prohibition (in modern practice) is an extraordinary writ, issued by a superior court to an inferior judicial tribunal to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from exceeding its legitimate powers in a matter of which it has jurisdiction."

It is the general rule that prohibition cannot be resorted to when ordinary and usual remedies provided by law are adequate and available as it is not intended to be a substitute therefor. See, 42 Am.Jur., Prohibition, s. 8, p. 144; 42 Am.Jur., Prohibition, s. 7, p. 143; State ex rel. Rheinauer v. Malone, supra; State ex rel. Burford v. Sullivan, supra; State ex rel. Burtzlaff v. Vickery, supra; State ex rel. Brickell v. Roach, 122 Ohio St. 117, 170 N.E. 866; State v. Vamos, supra; Harrison v. Murphy, supra; Eberhardt v. Barker, 104 Fla. 535, 140 So. 633; Van Dyke v. Superior Court of Gila County, supra; Keefe v. District Court of Carbon County, 16 Wyo. 381, 94 P. 459; Jesmer Co. v. Wurdemann-Hjelm Corp., 250 Minn. 574, 85 N.W.2d 207; Bellows v. Ericson, 233 Minn. 320, 46 N.W.2d 654. As stated in Harrison v. Murphy, supra [132 Fla. 579, 181 So. 389], by quoting from 22 R.C.L., s. 22, p. 23: "It is well established that a writ of prohibition may not ordinarily be used as a process for the review and correction of errors committed by inferior tribunals. Mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, both because there has been no usurpation or abuse of power, and because there exists other adequate remedies. Whatever power is conferred may be exercised, and, if it be exercised injudiciously or irregularly, it amounts to an error merely, and not to a usurpation or excess of jurisdiction." However, the function of the writ, as evidenced by many cases herein cited, has been extended to cover situations where, even though the inferior tribunal had jurisdiction, the superior court deemed it necessary and advisable to issue the writ to prevent palpable and irremediable injustice, especially when it appeared there existed no adequate remedy by appeal or otherwise to prevent it from occurring. See, State ex rel. Burford v. Sullivan, supra; 73 C.J.S. Prohibition § 4, p. 15; Harris Foundation v. District Court of Pottawatomie County, 196 Okl. 222, 163 P.2d 976, 162 A.L.R. 272; Harrison v. Murphy, supra; 42 Am.Jur., Prohibition, s. 8, p. 144; 42 Am.Jur., Prohibition, s. 9, p. 145. As stated in State ex rel. Burford v. Sullivan, supra, by quoting from Harris Foundation v. District Court of Pottawatomie County, supra: "Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force, and the writ will not be withheld because other concurrent remedies exist; it not appearing that such remedies are equally adequate and convenient."

The record shows that on July 29, 1954, Elmer L. Moore,...