Olden v. Paxton

• Decision Date: 01 July 1915
• Citation: 150 P. 40,27 Idaho 597
• Parties: B. F. OLDEN, Plaintiff, v. MELBA JULE PAXTON and CHARLES P. MCCARTHY, Judge of Third Judicial District in and for Ada County, Defendants
• Court: Idaho Supreme Court

150 P. 40

27 Idaho 597

B. F. OLDEN, Plaintiff, v. MELBA JULE PAXTON and CHARLES P. MCCARTHY, Judge of Third Judicial District in and for Ada County, Defendants

Supreme Court of Idaho

July 1, 1915

WRIT OF PROHIBITION-CONDITION NECESSARY TO ISSUANCE OF WRIT.

1. Before a writ of prohibition will lie, two contingencies must arise; first, that the tribunal, corporation, board or person is proceeding without or in excess of its jurisdiction second, that there is not a plain, speedy and adequate remedy in the ordinary course of law. (Secs. 4994 and 4995, Rev Codes.)

2. Held, under the facts in this case, petitioner has a plain speedy and adequate remedy in the ordinary course of law, and no pressing necessity appearing to warrant the interposition of the writ of prohibition, it is denied.

Original application for writ of prohibition. Demurrer to petition sustained, writ denied and proceeding dismissed.

Demurrer sustained and writ denied. Costs awarded to defendants.

J. B. Eldridge, for Plaintiff.

The writ will issue whenever the district court is proceeding without or in excess of its jurisdiction. (Cronan v. District Court, 15 Idaho 184, 96 P. 768; Clark v. Rossier, 10 Idaho 348, 78 P. 358, 3 Ann. Cas. 231.)

The general demurrer filed by counsel to the petition herein is not sufficient to raise the question of the remedy, but only goes to the sufficiency of the petition itself. The writ should lie in all such cases. (McLean v. District Court, 24 Idaho 441, 134 P. 536; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Baker v. Gooding County, 25 Idaho 506, 138 P. 342.)

Wood, Driscoll & Wood, for Defendants.

To entitle a person to a writ of prohibition, not only must the question raised be one of jurisdiction of the inferior tribunal, but there must be total lack of any other plain, speedy and adequate remedy in the ordinary course of law. (State ex rel. Miller v. Superior Court, 40 Wash. 555, 111 Am. St. 925, 82 P. 877, 2 L. R. A., N. S. , 395; 32 Cyc. 613-617; Lindley v. Superior Court, 141 Cal. 220, 74 P. 765; Pickering v. Justice, 16 N.M. 37, 113 P. 619; State v. Superior Court, 73 Wash. 296, 131 P. 816; Rust v. Stewart, 7 Idaho 558, 64 P. 222.)

The writ will not issue where there is a plain, speedy and adequate remedy (Willman v. District Court, 4 Idaho 11, 35 P. 692; Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568), and appeal to this court is such remedy.

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an original application in this court for writ of prohibition to restrain Honorable Charles P. McCarthy, district judge of the third judicial district for Ada county, from proceeding further with the trial of a cause wherein Melba Jule Paxton, formerly Melba Jule Parsons, as plaintiff, seeks to recover from the defendant, B. F. Olden and his bondsmen, Idaho Trust & Savings Bank, Limited, the sum of $ 3,500, alleged by plaintiff to be the value of certain jewelry which came into the possession of the said Olden while acting as administrator of the estate of Mary Elizabeth Welpley Parsons, deceased, and which, plaintiff alleges, has never been accounted for nor delivered to her under the will as the only heir of said Mary Elizabeth Welpley Parsons, mother by adoption of plaintiff, who died September 12, 1906.

It is alleged in the complaint, among other things, that B. F. Olden was, on October 17, 1906, appointed administrator with the will annexed of the estate of Mary Elizabeth Welpley Parsons; that the said Olden converted all of said property to his own use prior to his discharge as administrator; and that, though plaintiff has frequently demanded the possession of said property from said administrator, these demands have been refused.

After the usual preliminary motions and demurrers, the defendant answered in the trial court and the cause was thereafter called for trial. The plaintiff insisted upon a trial by a jury and over defendant's objection was sustained. Motion was then made to dismiss said cause of action upon the ground and for the reason that the court had no jurisdiction to hear the matter and, on denial of said motion, the present proceeding was instituted.

The petitioner sets out in his petition for the writ numerous allegations contained in the complaint of the plaintiff below, which are in contradistinction to the decree of the probate court approving the final account of the administrator of the estate of Mary Elizabeth Welpley Parsons, deceased, the entering of a decree of distribution by said probate court, the final discharge of said administrator, and the release and exoneration of his sureties, which complaint, counsel for petitioner contends, constitutes a collateral attack on the judgment of the probate court.

To the petition for writ of prohibition a demurrer was interposed by counsel for respondent.

We do not deem it necessary to call attention to, or specifically point out in this opinion, the various allegations of the plaintiff's complaint, or the allegations contained in the petition for the writ of prohibition. Petitioner's contention is based upon the ground that the trial court is without jurisdiction as a court of law, and he objects to having the judgment of the probate court collaterally attacked and tried out in a court of law before a jury, but admits that this action may be heard and determined by a court of equity.

When a court has any jurisdiction either at law or in equity, a writ of prohibition will not lie. (Shell v. Cousins, 77 Va. 328.) For, as held in the case of Rust v. Stewart, 7 Idaho 558, 64 P. 222, "The writ of prohibition is an extraordinary remedy which issues, not as a matter of right, but in the sound discretion of the court . . . . but does not lie when a plain, speedy, and adequate remedy, in the ordinary course of law exists. The peremptory writ of prohibition will not issue to restrain a district court from proceeding in a certain manner in a proceeding before it, where it is apparent that the action of such district court can be reviewed speedily in one of the modes prescribed by law."

Sec. 4994, Rev. Codes, must be read and construed in connection with sec. 4995. The former provides: "The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." The latter provides: "It may be issued by any court except probate or justices' courts, to an inferior tribunal, or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. . . ."

Thus, two contingencies must arise before the writ of prohibition will issue, viz., that the tribunal, corporation, board or person is proceeding without or in excess of the jurisdiction of such tribunal, corporation, board or person; and that there is not a plain, speedy and adequate remedy in the ordinary course of law.

It is claimed by counsel in the case at bar that this is a proper case for the invocation of the extraordinary writ of prohibition, because the court is proceeding without jurisdiction; not because the defendant has no plain, speedy and adequate remedy in the ordinary course of law. In the case of Lindley v. Superior Court of Siskiyou County, 141 Cal. 220, ...