People ex rel. Hudson v. Judge of Superior Court of Detroit

• Citation: 42 Mich. 239,3 N.W. 850
• Court: Supreme Court of Michigan
• Decision Date: 29 November 1879
• Parties: PEOPLE ex rel. JOSEPH L. HUDSON v. JUDGE OF SUPERIOR COURT OF DETROIT.

3 N.W. 850

42 Mich. 239

PEOPLE ex rel. JOSEPH L. HUDSON v. JUDGE OF SUPERIOR COURT OF DETROIT.

Supreme Court of Michigan

November 29, 1879

Prohibition is a preventive remedy provided by the common law to restrain the action of courts in excess of their jurisdiction, or as to matters outside of their jurisdiction, may be applied for by either party, is granted not as matter of strict right but in sound judicial discretion, goes only to the excess of jurisdiction, can be resorted to only when other remedies are ineffectual, and to authorize its issuance it must appear that the party applying has appealed in vain for relief to the court against which the writ is asked. On the facts in this case, and as the relator appears to have made no application for relief to the court sought to be restrained writ of prohibition is denied.

Application for writ of prohibition.

Don. M Dickinson and Alfred Russell, for relator.

H.C Wisner and G.V.N. Lothrop, for respondent.

MARSTON J.

On return to the order heretofore granted requiring the respondent to show cause why a writ of prohibition should not issue.

From a careful examination and consideration of all the facts set forth in the original and supplemental bills filed in the U.S. court it is apparent that the principal aim and object sought, if not indeed the only one, was, in the first instance, to prevent the prosecution of the case of Schwab v. Mathews et al., pending in the superior court, and, since judgment was rendered therein, the collection thereof.

The question of quieting and determining the title of Hudson, as assignee, to the goods seized, or the avails thereof, is but secondary, and even to that extent of doubtful good faith. If the latter were the real object there would be no necessity, or even propriety, in joining as parties complainants the defendants in the superior court case, some of whom were not even creditors of the bankrupts, or interested in the proceedings taken against them.

Be this as it may, however, and without adverting at length to the propriety or legality of seeking to set aside, and having declared null and void in this way a valid judgment of the superior court, we cannot, from the showing made, see how the assignee in bankruptcy can be at all delayed or obstructed in the performance of his duties by the judgment rendered in the superior court, or the efforts of the plaintiff therein to collect the same from the defendants in that case. The assignee is not a party defendant in that case, and is neither personally nor as assignee bound by the judgment. The payment of that judgment by the defendants therein, or its enforced collection against them, cannot take away or affect injuriously the assets of the bankrupts in the hands of the assignee.

There is no pretense made, in either the original or supplemental bill, that any person other than Schwab, as against the bankrupts or their assignee, claims the goods in dispute, or any part thereof, or interest therein, and payment or satisfaction of the superior court judgment effectually settles all further claim by Schwab to the goods or avails thereof, thus leaving the proceeds thereof unquestioned in the hands of the assignee, to be distributed amongst the creditors of the bankrupts. How, therefore, the assignee or those he represents can be injuriously affected by the collection of that judgment is not apparent. True, those who indemnified the marshal, and those against whom the judgment was rendered, may be affected, but we do not understand it to be the duty of the the assignee to protect them. Certainly the bills filed do not proceed upon the theory of affording protection to those creditors who indemnified the marshal. The indemnifying creditors are not made parties in the equity cases, nor is relief asked in their behalf as such.

The marshal, and those who were joined with him as defendants in the case in the superior court, had an opportunity to be there heard. If they submitted themselves to the jurisdiction of that court, and permitted a judgment to be rendered against them, we do not consider or understand it to be one of the duties of the assignee in bankruptcy to relieve them from the consequences thereof. Should the assignee proceed and the court determine and decree, that the title to the goods claimed by Schwab was in the assignee, and that they were a part of the assets of the bankrupts,...