Jones v. Jones

• Decision Date: 31 March 1931
• Docket Number: No. 13105.,13105.
• Citation: 158 S.E. 134
• Parties: Ex parte JONES et al. JOHNSON. v. JONES et al.
• Court: South Carolina Supreme Court

158 S.E. 134

Ex parte JONES et al.

JOHNSON.

v.JONES et al.

No. 13105.

Supreme Court of South Carolina.

March 31, 1931.

Original application by S. J. and H. J. Jones for writ of prohibition to prevent Hon. S. W. G. Shipp, Judge of the Twelfth Judicial Circuit, and the Court of Common Pleas of Georgetown County, from further proceeding in cause styled James D. Johnson v. S. J. and H. J. Jones, copartners, doing business under the trade-name and style of S. & J. Jones, Hauling Contractors.

Rule and restraining order issued discharged, and application denied.

Logan & Grace, of Charleston, for petitioners.

D. Gordon Baker, of Florence, for defendants.

SMITH, A. A. J.

This is an application to the court in its original jurisdiction for a writ of prohibitionto prevent the Honorable S. W. G. Shipp, judge of the Twelfth judicial circuit, and the court of common pleas of Georgetown county, from further proceedings in a cause instituted therein by the service of a summons and verified complaint on the 29th day of April, 1930, and styled James D. Johnson, Plaintiff, v. S. J. and H. J. Jones, Copartners, Doing Business Under the Trade-Name and Style of S. & Jones, Hauling Contractors.

The complaint in said cause, in substance, alleges:

That the plaintiff is a resident of the county of Georgetown, and the defendants are residents of the county of Charleston; that the action is brought in equity and in behalf of the plaintiff and all others who will come in, assist in defraying the expenses thereof, and share in the benefits to be derived therefrom; that some months prior to the commencement of the action the defendants sought from the Railroad Commission of South Carolina, and had been repeatedly refused, a franchise or license to operate express trucks for compensation between the city of Charleston and the town of Conway in said state over state highway No. 40, serving the city of Georgetown, the town of McClellanville, and all villages between; that, notwithstanding such repeated refusals, and also warnings by the said Railroad Commission, the defendants thereafter began, and have continued, the operation of such express or "motor truck freight service, " have solicited patronage over said route, printed, published in newspapers, and distributed to the public schedule cards announcing the arrival and departure of their trucks at and from different places along said route, and the plaintiff demands that the defendants be "enjoined and restrained from continuing the run in interference with the business of the plaintiff or his attorney on or before noon of the 10th day of May, 1930, a copy of their return with all documents and papers relied as may be just."

Based upon this verified complaint, the Honorable S. W. G. Shipp, on the 29th day of April, 1930, issued a rule against the defendants to show cause before him at his chambers, at Florence, S. C., on the 10th day of May, 1930, why the defendants "individually and as owners of the S. & J. Jones, Hauling Contractors, should not be restrained from taking any action, step or proceeding intended for, looking to, or seeking to accomplish the operation of a truck line between Charleston, S. C., and Conway, S. C., via McClellanville and Georgetown, " and in the meantime restrained the defendants from the operation of their express trucks on that part of the route located in Georgetown county. The defendants were further required to serve on the plaintiff or his attorney on or before noon of the 10th day of May, 1930, a copy of their return with all documents and papers relied on.

On the 5th day of May, 1930, just five days before the return day of the rule to show cause issued by the circuit judge, petitioners applied to the Honorable Eugene S. Blease, Associate Justice of this court, for a writ of prohibition to prevent any further action in said cause by the circuit judge and the court of common pleas, upon the grounds that said judge and court were completely without jurisdiction of the person of the defendants and the subject-matter of the action, and that the petitioners would, in the event of the contemplated judicial action therein, sustain a serious injustice and damage in business and property, for which there was no adequate money compensation.

On the same day Mr. Justice Blease issued a rule against the said circuit judge, court of common pleas, and the respondent to show cause before this court on the 12th day of May, 1930, why the writ should not be granted and all further proceedings in the said cause be restrained and enjoined, and further ordered that, until the further order of this court, the said circuit judge and court be restrained from further proceedings in the said cause; that the temporary restraining order issued by the circuit judge and all further proceedings thereunder be stayed and suspended pending the return of the respondents, copies of which were ordered served on the petitioners or their attorneys at least two days before the return day.

Within the prescribed time the Honorable S. W. G. Shipp, as judge of the Twelfth judicial circuit and in behalf of the court of common pleas of Georgetown county, filed a return which substantially alleges:

That the complaint and order based thereon are correctly set forth in the petition for the writ; that this court has before it the same information and knowledge that the court of common pleas and circuit judge had at the time of the issuance of said order; that the above-named respondents have no knowledge or information as to the merits of the said cause, except as set out in the verified complaint, and have no interest whatsoever therein; that it appeared from the verified complaint that the petitioners were operating express trucks within the county of Georgetown without the permission of the Railroad Commission; that the action was brought by the plaintiff as a resident and citizen of the state of South Carolina and of the county of Georgetown for the benefit of himself and others interested in the use of the highways of said county; that said restraining order and rule to show cause were intended to be effective only as to the operation of a truck line in violation of the law in the county of Georgetown, and, if the petitioners had ap-plied for an order requiring plaintiff in said action to file a suitable bond, an order to this effect would have been made.

The ancient prerogative writ of prohibition has been recognized and employed in the common-law system of jurisprudence for more than seven centuries, and like all prerogative writs should be used with forbearance and caution, and only in cases of necessity. It is primarily a preventive process, and is only incidentally remedial. It was originally designed to perfect the administration of justice and for the "control of subordinate functionaries and authorities, " but its principal modern use, stated generally, is to prevent the assumption and exercise of jurisdiction by an inferior court or tribunal in cases where wrong, damage, and injustice are liable to follow such action. 22 R. O. L. pp. 4 and 5.

With regard to the function and scope of the writ, it has been settled in this state from an early period that it will only lie to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure; but, if the inferior court or tribunal has jurisdiction of the person and subject-matter of the controversy, the writ will not lie to correct errors and irregularities in procedure, or to prevent an erroneous decision or an enforcement of an erroneous judgment, or even in cases of encroachment, usurpation, and abuse of judicial power or the improper assumption of jurisdiction, where an adequate and applicable remedy by appeal, writ of error, certiorari, or other prescribed methods of review are available. Zylstra v. City of Charleston, 1 S. C. L. (1 Bay) 382; Ramsay v. Court of Wardens, 2 S. C. L. (2 Bay) 180; McDonald v. Elfe, 10 S. C. L. (1 Nott & McC.) 501; State v. Whyte, 11 S. C. L. (2 Nott & McC.) 174; Gist v. Cole, 11 S. C. L. (2 Nott & McC.) 456, 10 Am. Dec. 616; State v. Wakely, 11 S. C. L. (2 Nott & McC.) 412; Ex parte Richardson, 16 S. C. L. (Harp.) 308; Kinloch v. Harvey, 16 S. C. L. (Harp.) 508; State v. Ridgell, 18 S. C. L. (2 Bailey) 560; State v. Mitchell, 18 S. C. L. (2 Bailey) 225; State v. Commissioner of Roads, 21 S. C. L. (3 Hill) 314, 321; State v. Hopkins, 23 S. C. L. (Dud.) 101; State v. Moultrieville, 24 S. C. L. (Rice) 158; State v. Simons, 29 S. C. L. (2 Speers) 761; In re State, 37 S. C. L. (3 Rich.) 111; State v. Nathan, 38 S. C. L. (4 Rich.) 513; Cooper v. Stocker, 43 S. C. L. (9 Rich.) 292: Ex parte Bradley, 43 S. C. L. (9 Rich.) 95; State v. Railway Company, 1 S. C. 46; State v. Fickling, 10 S. C. 301; State v. Stackhouse, 14 S. C. 417; Richland County v. Columbia, 17 S. C. 83; Hunter v. Moore, 39 S. C. 394, 17 S. E. 797; State v. Kirkland, 41 S. C. 29, 19 S. E. 215; State v. Raborn, 60 S. C. 78, 38 S. E 260; Riley v. Greenwood, 72 S. C. 90, 51 S. E. 532, 110 Am. St. Rep. 592; Holladay v. Hodges, 84 S. C. 91, 65 S. E. 952.

While the reference to judicial authority in support of the foregoing principles defining the use of the writ has been confined to our own decisions, it may be observed that similar views are uniformly and widely sanctioned throughout the country, and the specific application thereof has quite naturally and logically led to the conclusion announced generally in the cases that, if there exists an adequate remedy by appeal or otherwise, the writ does not lie to restrain the issuance of an injunction or the review of any order therefor. 32 Cyc. p. 619.

The specification of jurisdictional grounds upon which the petitioners rely to support the application for the writ are somewhat numerous, but such objections, summarized, may be thus stated: (1) That the...