People ex rel. Allen v. District Court of City and County of Denver

• Decision Date: 04 December 1922
• Docket Number: 10488.
• Parties: PEOPLE ex rel. ALLEN v. DISTRICT COURT OF CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

211 P. 626

72 Colo. 525

PEOPLE ex rel. ALLEN v. DISTRICT COURT OF CITY AND COUNTY OF DENVER et al.

No. 10488.

Supreme Court of Colorado

December 4, 1922

Rehearing Denied Feb. 5, 1923.

Department 2.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Certiorari by the People, on the relation of William F. Allen, to review an order granting a motion for change of venue in an action by the petition against the District Court of the City and County of Denver and others.

Writ discharged.

Ernest Morris, of Denver, for petitioners.

W Mabry King, T. E. Munson, and J. R. Coen, all of Sterling for City of Sterling.

L. Ward Bannister and Samuel M. January, both of Denver, for Fidelity & Deposit Co. of Maryland.

DENISON J.

The district court of Denver granted a motion for change of venue to Logan county in a case in which the relator and his firm, Allen & Murphy, were plaintiffs, and the city of Sterling, the Fidelity & Deposit Company of Maryland, and Murphy were defendants. He brings certiorari and claims that the court exceeded its jurisdiction because the case under the Code was properly triable only in Denver.

We do not see that there was lack of jurisdiction; the court had jurisdiction of the whole case and was, of course, the only court that had power of hear and determine the motion. Having that power, it necessarily had powe to determine the question either way--to grant, or deny--and it follows that its decision, however erroneous, was not in excess of jurisdiction. The motion was not upon any point involving discretion; therefore, since certiorari will lie in this state only for excess of jurisdiction or great abuse of discretion, the action of the court is no more than error, and certiorari is not the remedy. Dilliard v. State Board, 69 Colo. 575, 196 P. 866.

True, we have sustained writs of prohibition for lack of jurisdiction many times where a court has denied a motion for a change of venue which should have been granted. We have, however, merely prohibited the court, not from denying the motion, but from further consideration of the case. We have said that if the motion for change was well founded and no question of fact was open the court had no jurisdiction except to grant the motion. Ashton v. Garretson, 37 Colo. 90, 85 P. 831; People ex rel v. District Court, 66 Colo. 330, 182 P. 7. It may be seriously doubted whether that statement was ligically sound, yet we are now asked to go further and say that if the motion is ill founded the court has no jurisdiction over it except to deny it. This is a reductio ad absurdum. The proposition is that the court which has full jurisdiction of the case has jurisdiction to determine that the grounds for change of venue are sufficient.

The writ is discharged.

SCOTT, C.J., and WHITFORD, J., concur.

On Motion for Rehearing En Banc.

DENISON J.

The motion for rehearing urges that the decision will compel the relator either to forego his defense in the district court of Logan...