Duffin v. Field, Judge

• Decision Date: 24 April 1925
• Citation: 208 Ky. 543
• Parties: Duffin v. Field, Judge.
• Court: United States State Supreme Court — District of Kentucky

208 Ky. 543

Duffin v. Field, Judge.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided April 24, 1925.

1. Prohibition — When Court of Appeals will Issue Prohibition Directed to Inferior Court Stated. — The Court of Appeals under jurisdiction conferred by Constitution, section 110, will issue a writ of prohibition when an inferior court is threatening to proceed or is proceeding in a matter of which it has no jurisdiction, and there is no other remedy, or where such court, though possessing jurisdiction, is exercising or about to exercise it erroneously and great injustice and irreparable injury would result, and there exists no other adequate remedy by appeal or otherwise.

2. Prohibition — Court of Appeals Held Without Jurisdiction to Issue Prohibition to Prevent Circuit Court from Trying Disbarment Proceedings Because Judge Refused to Vacate Bench on Plaintiff's Motion. — Where circuit judge had jurisdiction of both person of plaintiff and subject-matter of disbarment proceeding, but overruled plaintiff's motion to vacate the bench and appoint another judge to preside, held that Court of Appeals has no jurisdiction, under Constitution, section 110, to issue a writ of prohibition on motion of plaintiff to prevent judge from trying disbarment proceedings, as plaintiff has a remedy by appeal from judgment entered in disbarment proceeding, such judgment may be superseded and suspended under Civil Code of Practice, sections 747, 748, until hearing of appeal, and plaintiff will suffer no irreparable injury pending an appeal.

Appeal from Jefferson Circuit Court

O'NEAL & O'NEAL for plaintiff.

L.D. GREENE and W. CLARK OTTE for defendant.

OPINION OF THE COURT BY JUDGE THOMAS.

Overruling motion and denying writ of prohibition.

This action is an original proceeding filed in this court by plaintiff, Owen D. Duffin, against defendant, William H. Field, one of the judges of the Jefferson circuit court, common pleas branch, first division, wherein plaintiff seeks a writ of prohibition against defendant to prevent the latter from hearing and trying a disbarment proceeding instituted before defendant for the purposes of disbarring plaintiff as an attorney at law. It is not disputed but that defendant has jurisdiction of both the person of plaintiff and the subject matter of the disbarment proceeding. He, however, overruled plaintiff's motion to vacate the bench and permit another judge to preside. because of insufficient facts set forth in the affidavit filed by plaintiff as the basis for his motion, and it is insisted that the statements contained in the affidavit were sufficient to require the sustaining of the motion by defendant, and because it was not done by him he should be prohibited by us, under our original jurisdiction conferred by section 110 of our Constitution, from further presiding in that proceeding.

A preliminary question is: Whether under the prevailing rules of practice governing the subject we have jurisdiction to issue the writ prayed for under the facts as they are presented? From the language of briefs for both sides it is apparent that learned counsel who prepared them entertain apprehension upon that point; but, it is strongly urged upon us by both sets of attorneys that we waive that question, at least for the purposes of this case, and determine the sufficiency of the affidavit. But we have concluded to forego our desire to accommodate counsel and to determine the question of our jurisdiction and dispose of the case accordingly. The reasons for our doing so are (a), if we have no jurisdiction under the prescribed practice we should not consume our time at the request of counsel and litigants in assuming it, since our opinion without jurisdiction would be coram non judice; and, (b), in an unguarded moment we were led by similar appeals to pursue the course requested, in the case of Huggins v. Field, 196 Ky. 501, which has been followed by an unprecedented number of applications to us for the same relief from supposed erroneous interlocutory rulings of courts during the progress of their hearings, and all to the detriment of the performance of our primary duties as an appellate tribunal. We are heavily taxed with them already and we are admonished that we should not infringe upon our time or burden ourselves further with entertaining original actions filed before us, except where it is necessary to carry out the intent and purposes of section 110 of the Constitution, supra, as heretofore construed by us.

That construction is, that we will prohibit inferior courts in all cases where, (1) they are threatening to proceed, or are proceeding, in a matter of which they have no jurisdiction and there is no remedy through an application to an intermediate court, and (2) where they, although possessing jurisdiction, are exercising or about to exercise it erroneously and great injustice and irreparable injury would result to the applicant if they should do so, and there exists no other adequate remedy by appeal or otherwise. Western Oil Refining Co. v. Wells, 180 Ky. 32; Natural Gas Products Co. v. Thurman, Judge, 205 Ky. 100; Tompkins v. Manning, Judge 205 Ky. 327; Fleece v. Shackelford, 204 Ky. 841, and many other cases referred to in those opinions. We will not repeat the reasons for our conclusion set forth in those opinions, but refer the reader to them for that information. Unless, therefore, this application comes within one of the grounds justifying our assumption of jurisdiction it should be denied.

That the ruling of defendant of which complaint is made was an interlocutory one, subject to revision by him at any time before final judgment in the cause, cannot be denied; neither is it questioned that plaintiff has the right of appeal...