Ducheneau v. Ireland

• Decision Date: 02 February 1887
• Citation: 13 P. 87,5 Utah 108
• Court: Utah Supreme Court
• Parties: CHARLES DUCHENEAU, RESPONDENT v. ELWIN A. IRELAND AND ANOTHER, APPELLANTS

13 P. 87

5 Utah 108

CHARLES DUCHENEAU, RESPONDENT v. ELWIN A. IRELAND AND ANOTHER, APPELLANTS

Supreme Court of Utah

February 2, 1887

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Judgment of the district court reversed with costs to appellant.

Mr Charles S. Varian for appellants.

Mr James N. Kimball for respondent.

BOREMAN J. ZANE C. J. and HENDERSON J., concurred.

OPINION

BOREMAN, J.

On the thirtieth day of March, 1885, D. P. Tarpey and Henry Phillips filed a complaint with a justice of the peace against said Charles Ducheneau for trespassing upon land. A summons was on that same day issued and served. On the fourth day of April following, the justice rendered judgment by default against said Ducheneau for $ 169.12, and costs. On that same day, but after the entry of the judgment, said Ducheneau filed his answer therein. Afterwards said Ducheneau sued out a writ of certiorari, and from the judgment of the district court vacating the judgment of the justice an appeal was taken to this court, where the judgment of the district court was reversed and the cause remanded, with directions to the district court to quash and dismiss the writ of certiorari. Upon the filing of the remittitur in the district court the writ was accordingly dismissed; and thereupon the judgment of the justice was docketed in the office of the clerk of the district court, and execution issued thereon. A writ of prohibition was then sued out by said Ducheneau from the district court, against the United States marshal and one of his deputies, wherein judgment was given in favor of said Ducheneau, prohibiting the officers from enforcing the execution, and from such judgment this appeal was taken.

The writ of prohibition may issue to arrest proceedings which are without or in excess of the jurisdiction of the officer purposing to do some objectionable thing; but it can only issue where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Under the act of congress of 1874, commonly known as the "Poland Act," it is the duty of the United States marshal "to serve and execute all process and writs issued out of" the district court. The territorial statute which authorizes the docketing of the justice's judgment with the clerk of the district court authorizes "that execution may be issued thereon by the district clerk" to the United States marshal, and "in the same manner and with like effect as if issued on judgments of the district court." Code Civil Proc. Sec. 784, (Laws of Utah. 1884, p. 298.) The judgment of the justice thus docketed with the district clerk did not thereby technically become the judgment of the district court. People v. Doe, 31 Cal. 220; Martin v. Mayor, etc., of N.Y., 20 How. Pr. 86; Martin v. Mayor, etc., of N.Y., 11 Abb. Pr. 295. But for the purpose of issuing and controlling the execution it is in effect the judgment of the district court under the territorial statute referred to. The objects, among other things, of filing and docketing the judgment with the clerk of the district court is to obtain the process of the district court to enforce it, and to secure such enforcement through the ministerial officers of that court. The issuance, therefore, and the enforcement of the execution, are district court matters, and as much so as if the judgment had been rendered in the district court. The judgment and execution were regular upon their face, and their validity was not in question. So far, therefore, as appears upon the papers, there is nothing to show that the marshal or his deputy was acting in excess of or without their jurisdiction.

When this case was formerly before us, on another appeal, it was decided that the judgment was erroneous. It was not held to be void, and we do not deem it to have been void, on the case as then made. It was contended then that the judgment of the justice was void for the reason that the summons required the defendant in that action to appear sooner, and that the judgment was rendered sooner than the statute authorized....