Parrott v. District Court of Third Judicial District
| Decision Date | 22 July 1912 |
| Docket Number | 713 |
| Parties | PARROTT ET AL. v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, WITHIN AND FOR THE COUNTY OF UINTA, ET AL |
| Court | Wyoming Supreme Court |
ORIGINAL application for writ of prohibition.
The application for the writ of prohibition was made by Joseph Parrott and the State of Wyoming on the relation of the said Joseph Parrott, naming as defendants the District Court of the Third Judicial District, within and for the County of Uinta, and David H. Craig, Judge. An alternative writ was issued and served, but there was no appearance on behalf of the defendants, and the case was heard and disposed of on the petition and the evidence presented by the plaintiffs.
W. B Dunton and T. S. Taliaferro, Jr., for plaintiffs.
Under the common law procedure which governs in this state in the absence of statute, the rule seems to be that where there is no answer or appearance by the defendants in response to an alternative writ of prohibition, the writ or order should be made absolute, as by default. In such case, also the averments of the petition, when verified, are to be taken as true, without the necessity of proof.
The order by the District Court dismissing the cause for want of prosecution was duly made in accordance with the provisions of statute. (Comp. Stat. 1910, Sec. 4609.) Thereupon, the District Court lost all power to modify the order, and it had no further jurisdiction in the cause, when the term at which the order of dismissal was made expired, no motion or other attempt having been made to modify the order during the term. (Comp. Stat. 1910, Sec. 4650.) The motion to reinstate did not set forth any grounds specified by the statute authorizing the vacation by the District Court of a judgment or order after the term, nor was any notice given to the defendants in the suit of the motion to reinstate, and there was no attempt to comply with the statutory procedure. The motion for and the order of reinstatement appear to have been considered entirely within the discretion of the court. The procedure was insufficient and unauthorized. (Huntington v. Finch, 3 O. St. 445; Gray v. Ames, 220 Ill. 251, 77 N.E. 219; Waller v. Clarke, 64 S.E. 1096; Strock v. Jamieson, 139 Ill.App. 339; Glaefke v. Western El. Co., 145 Ill.App. 383.)
The District Court had no jurisdiction to reinstate the cause when the order for reinstatement was made. The writ of prohibition is a proper remedy to restrain further proceedings. The plaintiff and relator has no other remedy than the writ of prohibition, and certainly no other remedy as speedy and adequate. A remedy by appeal would require an expensive and useless trial in the District Court. (Mining Co. v. Court, (Cal.) 82 P. 70; Kirby v. Court, 68 Cal. 604, 10 P. 119; State v. Williams, 48 Ark. 227; Spencer v. Branham, 109 Cal. 336, 41 P. 1095; State v. Court, 19 Wash. 128, 52 P. 1013; Burroughs v. Taylor, 90 Va. 55, 17 S.E. 745; White v. Court, 72 Cal. 475, 14 P. 87; 2 Spelling on Inj. & Ext. Rem., Secs. 1726, 1730; 32 Cyc. 610.) The principle here contended for is clearly stated in an exhaustive note in 111 Am. St. Rep. 946. The question whether a party has another adequate remedy than prohibition is to be determined upon the facts of each particular case.
No appearance for defendants.
In this case the plaintiffs filed in this court a petition for a writ of prohibition to be directed to the District Court in and for Uinta county, and to Hon. David H. Craig, judge of said court, to prohibit further action in a certain case in said court wherein Frank Blanchard is plaintiff, and Joseph Parrott (plaintiff here) is defendant. The petition was presented to the Chief Justice, who issued an alternative writ and made the same returnable before the court. Service was duly acknowledged, but no answer or other plea was filed on behalf of defendants, and the case has been heard on the petition, and the evidence presented by the plaintiffs. The facts, as found by the court, are, that said Blanchard filed a petition in the District Court of Uinta county on April 6, 1907, against the said Parrott for the recovery of damages for an alleged breach of contract. On May 25, 1907, the defendant therein, Parrott, filed a demurrer to the petition, which demurrer was confessed by the plaintiff September 14, 1907, and he was given ninety days from that date to file an amended petition, and defendant was given thirty days thereafter to answer. No amended petition having been filed, the defendant on January 11, 1908, filed a motion to dismiss the action for the failure of the plaintiff to comply with the order of September 14, 1907. An amended petition was filed February 8, 1909, without leave of court. Nothing further was done until April 14, 1911, when the following order was entered: "On motion of attorney for defendant, it is ordered by the court that this case is dismissed for lack of prosecution." At the next term of the court, to-wit: September 14, 1911, the defendant filed a motion to reinstate the case on the docket, and on the same day the court entered an order reinstating the case on the docket It appears by the affidavit of Parrott filed in this court in support of his petition for the writ, that he had no notice of the motion to reinstate the case on the docket or of the order so doing until long after September 14, 1911; that when the case was dismissed April 14, 1911, he supposed the action was ended, and that he never employed any attorney to represent him on the hearing of the motion to reinstate the case on the docket and that no attorney did represent him on said hearing. An affidavit of John R. Arnold recites: ...
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