Litteral v. Woods, Judge

• Citation: 223 Ky. 582
• Parties: Litteral v. Woods, Judge.
• Decision Date: 16 March 1928
• Court: United States State Supreme Court (Kentucky)

223 Ky. 582

Litteral v. Woods, Judge.

Court of Appeals of Kentucky.

Decided March 16, 1928.

1. Prohibition. — For Supreme Court to exercise original jurisdiction, under Constitution, sec. 110, by writ of prohibition over inferior court having jurisidiction, but proceeding erroneously, there must be not only an erroneous exercise of jurisdiction by the inferior court and no adequate remedy by appeal, but there must also be the element of great and irreparable injury, damage, or injustice.

2. Prohibition. — Where, in action in quarterly court for recovery of $175, defendant though present by counsel permitted judgment in nature of default to be rendered in favor of plaintiff for full amount sued for and then appeal to circuit court, held, that Supreme Court will not grant writ of prohibition, under Constitution, sec. 110, to prohibit circuit court from entertaining appeal, since, though circuit court may be proceeding erroneously within its jurisdiction, there is no great and irreparable injury to plaintiff authorizing Supreme Court to exercise its original jurisdiction.

Petition for Writ of Prohibition.

JAMES B. ADAMSON and CHARLES PRATER for plaintiff.

BROWNING & REED for defendant.

OPINION BY JUDGE THOMAS.

Denying writ of prohibition.

This is an original action filed in this court by plaintiff, Wiley Litteral, against defendant H.L. Woods, judge of the Boyd circuit court, by which the former seeks a mandatory order against the latter requiring him to sustain plaintiff's motion made in that court to dismiss the appeal filed therein by the Chesapeake & Ohio Railway Company from a judgment rendered against it in the Boyd quarterly court in favor of plaintiff herein for the sum of $175. The motion made before defendant in the circuit court to dismiss the appeal from the judgment in the quarterly court is bottomed upon these facts:

Plaintiff herein filed his action against the railway company in the Boyd quarterly court seeking to recover from it the sum of $175 as damages for the alleged killing of a horse belonging to plaintiff by one of the company's trains, and which was averred to have been negligently done. On the day the cause was set for trial in the quarterly court defendant in that case was present by counsel, but filed no answer, and judgment in the nature of a default one was rendered in favor of plaintiff for the full amount sued for. The judgment rendered by the quarterly court, a copy of which was filed with the papers on appeal to the circuit court as is required by the Civil Code of Practice, recites:

"Then came the defendant by their attorney, Clifford Smith, and failed to plead to said petition, but agreed in open court that judgment should go against the defendant, and the court after being sufficiently advised sustained said motion and consented to said agreement,"

— whereupon judgment was rendered as stated. The motion made in the circuit court to dismiss the appeal prosecuted thereto was bottomed upon the fact that the quarterly court judgment, being one by agreement and consent of defendant through and by its counsel, no appeal could be prosecuted by it to the Boyd circuit court; and in support of that contention reliance is had upon the cases of Duncan v. Louisville, 13 Bush, 378, 26 Am. Rep. 201; Taylor v. Slider, 185 Ky. 756, 215 S.W. 827; Staverson v. Kentucky Utilities Co., 216 Ky. 309, 287 S.W. 890, and Commonwealth v. Helm, 163 Ky. 69, 173 S.W. 389 — the last two of which were appeals from judgments of courts presided over by the county judge to the circuit court, while the others were appeals from the latter court to this court.

In the one case the trial by the appellate court is a de novo one, while in the other one (an appeal from the circuit court to this court) the hearing in the appellate court is only a reviewing one. Whether the general rule of practice forbidding appeals from consent judgments would apply as strictly where the trial on appeal is a de novo one need not be determined by us, and upon which we at this time express no opinion. The reason for that statement is that in both the Staverson and Helm cases (which as stated were appeals to a de novo trial court) the judgments appealed from were clearly shown to be compromising in their nature, and involved agreements of settlement of the matters involved in the particular litigations. Clearly, in such cases it would be manifestly unjust and improper to permit a repudiation of such an agreement through the avenue of appeal, the agreement being a waiver of all errors. Whether the order embodied in the judgment of the Boyd quarterly court, and here involved, is sufficient to show such a compromising agreement will not be discussed or determined by us for the reasons hereinafter stated.

The authority for the relief sought by this original action in this court, if it exists at all, is to be found in the provisions of section 110 of the Constitution, in which it is said with reference to original jurisdiction of this court:

"Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions."

We have been unable to find in any state Constitution such broadly conferred, or what might be termed "blanket," authority in the exercise of original jurisdiction of strictly appellate and reviewing courts. For awhile after the adoption of our present Constitution this court declined to construe the inserted excerpt from its section 110 as giving original jurisdiction to this court of any control over inferior ones where they were proceeding within their jurisdiction and which was in conformity with, and by analogy to, the definition of a writ of prohibition contained in section 479 of the Civil Code of Practice, defining the authority as it may be exercised by circuit courts against those inferior to it, and it gave to the former jurisdiction to prohibit the latter "from proceeding in a manner out of its jurisdiction." A case illustrating such first interpretation of section 110 of the Constitution by this court is that of Standard Oil Co. v. Linn, 32 S.W. 932, 17 Ky. Law Rep. 833.

Latterly we have by interpretation extended our authority to issue controlling writs to inferior courts (under the provisions of the section of the Constitution, supra) to cases not only where they are proceeding without jurisdiction, but also to cases where they are proceeding to exercise their jurisdiction erroneously, resulting in great and irreparable injury to the applicant, and without any remedy open to him by appeal or otherwise. Cases so enlarging our authority to include those where "great and irreparable injury" would result without an adequate remedy, although the inferior court was acting within its jurisdiction but erroneously, are Natural Gas Products Co. v. Thurman, 205 Ky. 100, 265 S.W. 475, Duffin v. Field, Judge, 208 Ky. 543, 271 S.W. 596, and others referred to in those opinions, and also still later ones. However, we have steadfastly adhered to the law, as everywhere declared, that without the element of "great injustice," "great and irreparable injury," "irreparable injury," or some such expression embodying the same idea, our original jurisdiction would not be exercised where the inferior court was proceeding within its jurisdiction, although erroneously and without the right of appeal or other remedy. 22 R.C.L. 23, par. 22; Carey v. Sampson, Judge, 150 Ky. 460, 150 S.W. 531; Ohio River Contract Co. v. Gordon, 170 Ky. 419, 186 S. W. 178; Rallihan v. Gordon, 176 Ky. 471, 195 S.W. 783; Gilman v. Doak, 194 Ky. 21, 237 S.W. 1069; McLaughlin v. Barr, 191 Ky. 346, 230 S.W. 304, and cases found in those opinions.

In the Duffin opinion we defined our interpretation of original jurisdiction under the constitutional section thus:

"That construction (of section 110) 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 (201 S.W. 473); Natural Gas...