Kastor v. Elliott

• Decision Date: 18 November 1905
• Citation: 91 S.W. 8,77 Ark. 148
• Parties: KASTOR v. ELLIOTT
• Court: Arkansas Supreme Court

91 S.W. 8

77 Ark. 148

KASTOR v. ELLIOTT

Supreme Court of Arkansas

November 18, 1905

Original petition for prohibition; denied.

Petition denied.

F. M Rogers, for petitioner.

White & Altheimer, for respondent.

Where the jurisdiction of the court is doubtful, or where the petitioner has other legal remedy, the grant or refusal of the writ of prohibition is discretionary, 155 U.S.; 402, 166 U.S. 136. In any case where the party aggrieved may have ample remedy by appeal, prohibition will not lie. 65 Ark 214.

OPINION

BATTLE, J.

Hugo Kastor applies to this court for a writ to prohibit the Lincoln Chancery Court from exercising jurisdiction in the suit of Jacob Poye against him in that court. He says "that on the 19th day of October, 1905, he instituted a suit in the Desha Chancery Court against Jacob Poye, a resident of Desha County; that the object of the suit was to enforce specific performance by Poye of the contract exhibited with the complaint therein, to obtain an accounting between the parties, and to restrain Poye from interfering with petitioner's possession of certain staves lying partly in Desha County, and partly in Lincoln County; that summons and a restraining order were issued and served on Poye in Desha County. * * * Petitioner says that, on the 20th day of October, 1905, Poye instituted suit in the chancery court of Lincoln County against petitioner (who is a non-resident of this State), the object of which suit is identically the same as the object of that filed by petitioner in Desha court; that the chancellor of the Lincoln Chancery Court issued an order, restraining petitioner from removing that portion of said staves which was located in Lincoln County, and also appointed a receiver, and directed the receiver to take possession of the staves and sell same; that the latter has advertised same for sale, and will sell same on the 17th day of this month (November, 1905), unless restrained by this court."

Judge Elliott responds, and admits the issuance of the restraining order, and the appointment of the receiver made by him in his official capacity, and alleges that the Lincoln Chancery Court has jurisdiction in the suit instituted in that court by Poye.

Poye being a resident of Desha County, and the contract sued on relating exclusively to personal property, the Desha Chancery Court had jurisdiction of the suit commenced in that court against him (Kirby's Digest, § 6072)...