Goodenough v. Kentucky Purchasing Co.
| Decision Date | 13 November 1931 |
| Citation | 241 Ky. 744,45 S.W.2d 451 |
| Parties | GOODENOUGH, Judge of Police Court, v. KENTUCKY PURCHASING CO. et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Feb. 12, 1932.
Appeal from Circuit Court, Kenton County.
Proceeding for writ of prohibition by the Kentucky Purchasing Company and others against Joseph P. Goodenough, Judge of the Police Court of the City of Covington. The prohibitive writ was issued as prayed for, and defendant appeals.
Reversed with directions.
Daniel W. Davies, Lawrence J. Diskin, both of Newport, and Ralph Rich, of Covington, for appellant.
William J. Dupree, of Covington, for appellee.
Frank S. Graydon and Maxwell & Ramsey, all of Cincinnati, Ohio, J P. Hamilton, H. T. Lively, Ashby M. Warren, and J. J Donohue, all of Louisville, Gregory W. Hughes and John E. Shepard, both of Covington, and Humphrey, Crawford & Middleton and Anna Hubbuch Settle, all of Louisville, amici curiae.
J. H. Taylor, a resident of Atlanta, Ga., conducts a loan business in the city of Covington under the trade-name of "Kentucky Purchasing Company," and two of the local managers and operatives of that business are L. B. Hines and R. C. Reiger. The appellant and defendant below, Joseph P. Goodenough, was and is the duly elected, qualified, and acting police judge of the city of Covington. On September 15, 1930, there was filed with defendant, as police judge of the city of Covington, an affidavit charging Taylor and his two local managers with the common-law offense of criminal conspiracy, growing out of the way and manner that the business of the purchasing agency was managed and conducted, and which the affidavit set out with great detail, and, if true, was in violation of law in several particulars, but which, for reasons hereinafter appearing, we do not deem it necessary to set forth in this opinion. At the same time, or closely following it, an affidavit was filed before defendant to procure a search warrant to search the premises wherein the business of the purchasing agency was conducted to obtain evidence which the applicant for the warrant averred would establish the guilt of the crime charged in the affidavit filed before defendant. The latter issued a warrant of arrest for Taylor and his local managers, and also issued the search warrant asked for, and it was executed as directed therein. The two local managers were also arrested, but Taylor, being a nonresident, was not arrested.
Taylor, with his two local managers, as plaintiffs below, then filed this action in the Kenton circuit court against the appellant and defendant below, as such police judge, seeking a writ of prohibition against him to prevent him from investigating the charge preferred against plaintiffs, and to also prohibit him from further proceeding under the search warrant and from considering any of the evidence that was revealed by its execution, all upon the alleged ground that he was proceeding, and about to proceed, without jurisdiction. To more fully present the relief sought by the action, we insert the prayer of the petition, which says: "Wherefore plaintiffs pray that this court will issue its writ of prohibition or order addressed to the Police Court of the city of Covington, Hon. Joseph E. Goodenough Judge of the said Court, prohibiting it from proceeding further in the matter of hearing and rendering judgment upon it against plaintiffs, J. H. Taylor, L. B. Hines and R. C. Reiger and directing and ordering that all of the commercial notes, papers, effects, furnishings and other personal property taken from the possession of plaintiffs be surrendered and delivered unto them, and that said Joseph Goodenough, acting as Judge be restrained and prevented from taking any steps or proceedings against plaintiffs, and that on final hearing it be adjudged that Joseph Goodenough as Judge of said Police Court aforesaid and said Court is proceeding beyond its jurisdiction and for all equitable relief to which in equity plaintiff is entitled." Defendant filed some preliminary motions, including one to strike certain parts of the petition and also a general demurrer to it, the latter of which was overruled by the court, and, defendant declining to plead further, the prohibitive writ as prayed for in the petition was issued, and from that judgment defendant prosecutes this appeal. Before considering the merits of the case, it should be stated that preceding final judgment in the cause the court entered an order directing the return to plaintiffs of the papers and records discovered by the execution of the search warrant, and that question was therefore disposed of before final judgment in the cause.
As we view the record, there is primarily presented only one question for determination, and which is: Has the defendant, as police judge of the city of Covington, jurisdiction to investigate and adjudicate upon the facts as preferred in the affidavits? Another question, however, has received by far the greater portion of argument of counsel on both sides, and which is subdivided into two inquiries: (a) Whether the facts stated in the affidavit to procure the warrant of arrest, and upon which defendant issued it, constitute the common law offense of conspiracy to obstruct justice and to invade the public policy of the commonwealth; and (b) whether the affidavit for the search warrant was sufficient to create probable cause so as to authorize defendant to issue it? A possible third subdivision might be: Whether the evidence obtained from the execution of the search warrant would be competent against plaintiffs in their trial upon the warrant of arrest that issued for them, although the affidavit for the search warrant and the warrant itself were in conformity with the requirements of the law?
As stated, elaborate arguments are made in briefs upon questions (a) and (b), supra, but, since we have concluded that defendant had jurisdiction to entertain, investigate, and adjudicate upon the facts presented in the two affidavits filed before him, and because of which the Kenton circuit court had no authority to prohibit him from doing so, it becomes unnecessary to determine any of the other stated questions. Not only so, but our indicated conclusion would render it extremely doubtful if we possessed jurisdiction to determine the other questions argued, since the only jurisdiction we possess in this case is exclusively appellate and not original, and, if the circuit judge who rendered the judgment appealed from had no authority to entertain the petition, then this court, as purely an appellate one, would be likewise circumscribed in its authority as such. Therefore we will proceed at once to a consideration of the question of defendant's jurisdiction to take the steps sought to be prohibited by plaintiff's petition.
From the argument made in briefs it is quite apparent that counsel have confused the jurisdiction of circuit courts to issue writs of prohibition against courts inferior to them, and the jurisdiction of this court in original actions filed with it under the provisions of section 110 of the Constitution to issue such writs against courts inferior to it. But, as the opinion proceeds, it will be made to appear that the respective jurisdictions of the two courts (this one and circuit courts) to issue prohibition writs against courts inferior to them are by no means parallel and rest upon quite different states of fact.
Section 479 of our Civil Code of Practice says: "The writ of prohibition is an order of the circuit court to an inferior court of limited jurisdiction, prohibiting it from proceeding in a matter out of its jurisdiction," and section 25 of the Criminal Code of Practice says: "The circuit court of any county may, by writ of prohibition, restrain all other courts of inferior jurisdiction in the limits of the county from exceeding their criminal jurisdiction." It will thus be seen that the only statutory enactments attempting to confer jurisdiction on circuit courts to issue such writs expressly confine their jurisdiction to cases where the inferior court sought to be prohibited has acted, or is about to act, outside of and beyond its jurisdiction, and numerous are the cases from this court confining the circuit court's jurisdiction to the limitations prescribed by the sections of our Codes supra, i. e., only where the inferior court to it is acting, or about to act, in a matter not within its jurisdiction. Some of the cases so holding are Morris v. Randall, 129 Ky. 720, 112 S.W. 856; Schobarg v. Manson, 110 Ky. 483, 61 S.W. 999, 22 Ky. Law Rep. 1892; Commonwealth v. Weissinger, 143 Ky. 368, 136 S.W. 875; Chiles v. Sheffer's Ex'rs, 146 Ky. 42, 141 S.W. 369; Cohen v. Webb, 175 Ky. 1, 192 S.W....
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