Mann v. Morrison

• Decision Date: 30 December 1943
• Docket Number: 6603
• Citation: 144 P.2d 543,106 Utah 15
• Court: Utah Supreme Court
• Parties: MANN v. MORRISON, Judge, et al

144 P.2d 543

106 Utah 15

MANN v. MORRISON, Judge, et al

No. 6603

Supreme Court of Utah

December 30, 1943

Original proceeding in certiorari and prohibition by May Vasta Randall Mann against Hon. Marriner M. Morrison, as Judge of the District Court of the First Judicial District in and for Box Elder County, State of Utah, and another to review a judgment in a suit wherein David Horace Mann was plaintiff and May Vasta Randall Mann was defendant, and to prohibit Marriner M. Morrison, as judge, from hearing such suit.

See also, 102 Utah 282, 130 P.2d 286.

Writ quashed and set aside.

Arthur Woolley, of Ogden, for plaintiff.

Walter G. Mann, of Brigham, and Thatcher & Young, of Ogden, for defendants.

LEVERICH District Judge. WOLFE, C. J., and LARSON, McDONOUGH, and MOFFAT, JJ., concur. WADE, J., being disqualified, did not participate.

OPINION

LEVERICH, District Judge.

Original proceeding in certiorari and prohibition. Petitioner seeks to have reviewed the proceedings of the district court for the First Judicial District in a divorce action pending therein and to prohibit Marriner M. Morrison, as judge, hearing said action. Writ of review issued. From the record it appears that petitioner is defendant in an action for divorce commenced by David Horace Mann. Petitioner filed an answer and counterclaim to the complaint of Mann and thereafter Mann interposed a general and special demurrer and a motion to strike. At the hearing of the motion and demurrer petitioner objected to Marriner M. Morrison, as judge, hearing said cause and ruling upon the demurrer and motion on the ground that he had been appointed by the Governor of this state, who was without authority to make such appointment. Defendant Morrison overruled the general demurrer and sustained portions of the special demurrer to the counterclaim. Petitioner was given leave to amend within ten days after notice of the ruling. Petitioner having failed to amend within time, Morrison entered a judgment upon motion of Mann, dismissing the counterclaim and proceeded to set the case on the trial calendar.

Petitioner raises two points: First, Judge Morrison exceeded the jurisdiction of the court in dismissing the counterclaim. Second: Judge Morrison was not a lawful judge sitting. We will discuss them in that order.

Section 104-67-2, R. S. U. 1933, provides:

"A writ of review may be granted by the supreme court * * * when an inferior tribunal * * * has exceeded the jurisdiction of such tribunal * * * and there is no appeal, nor, in the judgment of the court or judge, any plain, speedy and adequate remedy in the ordinary course of law * * *."

Section 104-67-8, R. S. U. 1933, provides:

"The review upon this writ [certiorari] cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer."

This court is limited in the scope of its review on certiorari. The only matter for determination is whether the district court had jurisdiction or whether having jurisdiction it exceeded that jurisdiction. Chesney et al v. District Court of Salt Lake County et al., 99 Utah 513, 108 P.2d 514; Ray v. Cox, Judge, et al., 83 Utah 499, 30 P.2d 1062; State v. Salmon, 90 Utah 512, 62 P.2d 1315; Griffin Company v. Howell, Judge, 38 Utah 357, 113 P. 326; Page v. Commercial Nat. Bank of Salt Lake City, 38 Utah 440, 112 P. 816; MacFarlane v. Burton, Judge, 64 Utah 41, 228 P. 193; Pincock, Sheriff, v. Kimball, Judge, 64 Utah 4, 228 P. 221; Hillyard v. District Court of Cache County, 28 Utah 220, 249 P. 806; Batley v. Ritchie, Judge, 73 Utah 320, 273 P. 969; Hilton Bros. Motor Co. v. District Court in and for Millard County, 82 Utah 372, 25 P.2d 595.

Justice Wolfe, speaking in the case of Atwood v. Cox, District Judge, 88 Utah 437, 55 P.2d 377, 380, makes the following statement:

"Many definitions of jurisdiction are given in 15 C. J. 723, § 13. They all mean, fundamentally, the power or capacity given by the law to a court, tribunal, board, body, or officer to entertain, hear, and determine certain controversies. * * It does not mean that the court must speak correctly by the law. What it says may be incorrect. * * * It takes a pleading to invoke the jurisdiction of the court, but, if the pleading shows that the cause or controversy relates to a subject-matter over which the court has jurisdiction, then the jurisdiction of the court is effective for the purpose of proceeding with the cause or controversy."

In the same opinion at page 452 of the Utah report, at page 384 of 55 P. 2d, it is said:

"It would appear that excess of jurisdiction means a case in which the court has initially proceeded properly within its jurisdiction but steps out of the jurisdiction in the making of some order or in the doing of some judicial act."

That the trial court had jurisdiction of the parties and of the subject matter is certain. The only question is whether the court in entering judgment of dismissal as to the counterclaim exceeded its jurisdiction.

The court having jurisdiction of the cause and parties had the power to hear and determine issues of law. Having such power or authority, a court of necessity has the authority to conclude its determination. This the court did by entering its judgment of dismissal. In the case of Continental Life Ins. & Inv. Co. v. Jones et al., 31 Utah 403, 88 P. 229, the trial court entered judgment of dismissal after sustaining special demurrers and the plaintiff's refusal to amend. From the judgment plaintiff appealed. The Supreme Court, after holding that such a judgment was appealable, said:

"The demurrers of both defendants to the original complaint, and Whitmore's demurrer to the amended complaint having been sustained, and the plaintiff having elected to stand on its amended complaint, the only appropriate order that could be made in the premises was a dismissal of the case." (Italics ours.)

In MacAdam v. Scudder, 127 Mo. 345, 30 S.W. 168, 170, on an appeal from a judgment of dismissal upon failure to amend after the granting of a motion to make more definite and certain, the Supreme Court of Missouri said:

"Upon the refusal of the plaintiff to comply with the rule [granting motion], and amend his petition, the court committed no error in dismissing the cause. This was the only alternative left to the court by which its authority could be maintained. The fact that the petition contained a statement of a cause of action is no reason why it should not have been dismissed." See, also, Graves v. Dakessian, Mo. Sup., 132 S.W.2d 972; Overstreet et ux. v. Donnell et al., Tex. Civ. App., 75 S.W.2d 937; Johnson et al. v. J. R. Watkins Medical Co., 66 Colo. 458, 182 P. 879; Howell et al. v. Fulton Bag & Cotton Mills et al., 188 Ga. 488, 4 S.E.2d 181.

On this question we see no distinction between a complaint and a counterclaim. We conclude that the trial court did not exceed its jurisdiction in entering judgment for dismissal. Whether the court was in error is not to be determined in this proceeding. Chesney et al. v. District Court of Salt Lake County et al., su...