Dobson v. Westheimer
| Decision Date | 10 May 1894 |
| Parties | DOBSON v. WESTHEIMER ET AL |
| Court | Wyoming Supreme Court |
Commenced May 3, 1894.
ORIGINAL APPLICATION for writ of prohibition, in which certain judgment and execution creditors, the sheriff, and the judge of the district court were made respondents. The prayer of the petition was to the effect that all proceedings in a certain action in said district court be declared void, and that prohibition issue to prevent all the respondents from proceeding further in said action and upon the judgment. The facts are stated in the opinion.
Writ denied and petition dismissed.
M. B Camplin, for petitioner.
The said plaintiff by his attorney presents his application for the writ of prohibition, which shows on its face: That petitioner is now and was during all of the times mentioned in his petition a resident of Weston county in this State that defendants, S. Westheimer and Company, brought suit in the district court of Sheridan county against plaintiff Dobson and one J. A. Jones, as co-partners doing business under the name and style of J. A. Jones and Company; that at the time of filing the petition in said suit an affidavit of attachment was filed alleging several grounds of attachment permitted by statute and also an undertaking in attachment approved by the clerk of court; that a summons and order of attachment issued thereon directed to the sheriff of Sheridan county in which J. A. Jones and Company were named as defendants. These were returned non est inventus and nulla bona, and alias summons and an order of attachment were issued, one directed to said sheriff and the other to the sheriff of Weston county. Jones was not found, but Dobson was served with the summons in Weston county, and summons by publication was made against Jones. Under the alias order of attachment a small amount of personal property of Jones & Co. was seized in Sheridan county and personal property consisting probably of liquors and saloon fixtures as the property of Dobson in Weston county. Dobson filed his plea to the jurisdiction of the court in said action, alleging that said court had no jurisdiction of the property and person of Dobson, and that he could be sued only in Weston county and his property seized only by virtue of process issuing out of a competent court of that county. This plea was overruled by the court and the property seized in both counties ordered to be sold to satisfy the judgment which the court rendered on default, no appearance other than the plea to the jurisdiction having been interposed. No motion was made to dissolve the attachments. We are asked to grant a "temporary writ of prohibition" by which we assume that petitioner desires a rule of this court on the parties named defendants to show cause why the writ should not issue. The code permits an action to be brought against a non-resident of this State in any county where there is property of or debts owing to the defendant, and when the action is rightly brought in any county a summons may be issued to any other county against one or more of the defendants at the plaintiff's request, with but one exception which does not apply in this case. Secs. 2419, 2425, Rev. Stat. Orders of attachment may be issued to the sheriffs of the different counties, and several of them may, at the option of the plaintiff be issued at the same time or in succession. Rev. St., sec. 2873.
It would seem that the proceedings relating to the issuance of the summons and orders of attachment were regular, but it is improper to decide that question, as it is manifest that we can afford the petitioner no relief in that respect, as the regularity of the proceedings of a court cannot be reviewed by the writ of prohibition. We have no statute relating to the procedure governing the application for the writ of prohibition. The constitution of this State provides that "the supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and other writs necessary and proper to the complete exercise of its appellate and...
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State ex rel. Weber v. Municipal Court of Town of Jackson
...P. 459 (1908); State ex rel. Mau v. Ausherman, 11 Wyo. 410, 72 P. 200 (1903); reh. den., 11 Wyo. 438, 73 P. 548 (1903); Dobson v. Westheimer, 5 Wyo. 34, 36 P. 626 (1894). The writ of prohibition is discretionary and not a matter of right; it is not favored and is issued only with caution; a......
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...our review of a writ of prohibition. A writ of prohibition will not lie to correct errors in practice or proceedings. Dobson v. Westheimer, 5 Wyo. 34, 36 P. 626 (1894); State ex rel. Mau v. Ausherman, supra. It will lie to prevent action in excess of jurisdiction, but not to prevent erroneo......
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......96; State v. Connell, 49 Mo. 282;. R. S. 1899, Sec. 3699; L. 1905, Ch. 6.). . . Prohibition. is the proper remedy. ( Dobson v. Westheimer, 5 Wyo. 34; State ex rel. v. Dist. Court, id., 227;. State ex rel. v. Ausherman, 11 Wyo. 410; State. ex rel. v. Court, 12 ......
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