MacFarlane v. Burton
| Decision Date | 19 July 1924 |
| Docket Number | 4149 |
| Court | Utah Supreme Court |
| Parties | MacFARLANE v. BURTON, District Judge |
Original proceeding by writ of review by William G MacFarlane against Thomas H. Burton, as Judge of the District Court of Iron County.
PROCEEDING DISMISSED.
J. M Foster, of Cedar City, for plaintiff.
WEBER, C. J., did not participate.
A writ of review was issued herein to the defendant requiring him to certify to this court the record of his proceedings wherein a writ of prohibition directed to the justice of the peace of Cedar City was issued. The plaintiff contends that the defendant was without jurisdiction to issue the writ, and prays that the proceedings be annulled.
The record certified to this court shows that an action was commenced in the justice's court of Cedar City by William MacFarlane, as plaintiff, against Goff & Snyder, as defendants, and that after the trial had begun the defendants filed a motion and affidavit for a change of venue upon the grounds of alleged bias and prejudice of the justice of the peace. The motion was denied. The defendants, claiming that the motion and affidavit for the change of venue ousted the justice's court of jurisdiction, applied to the district court of Iron county and obtained, without notice, a writ of prohibition, which was served upon the justice of the peace on April 26, 1924, commanding him to desist and refrain from further proceeding in the case, and to make a return of his proceedings to the district court on or before the 18th day of June, 1924. On May 7, 1924, and without any appearance or proceedings in the district court responsive to the writ of prohibition, the plaintiff applied to this court and obtained the writ of review now under consideration.
The plaintiff contends that the writ of prohibition should be annulled by this court in this proceeding for the following reasons: (1) There were no grounds for issuing the writ because the application for change of venue in the justice's court was insufficient in form and was not made before trial as required by Comp. Laws Utah 1917, § 7427, and was properly denied. (2) The writ of prohibition is peremptory in form, and, having been issued without notice, is therefore void.
While we think it perfectly clear from the record that the application for a change of venue was not made in the justice's court until after trial had commenced, and that the justice of the peace very properly denied the change, and while there is some uncertainty as to whether the writ of prohibition issued constituted a...
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