People ex rel. Lindsley v. District Court of Fremont County

• Decision Date: 12 January 1903
• Parties: PEOPLE ex rel. LINDSLEY, Dist. Atty., v. DISTRICT COURT OF FREMONT COUNTY et al.
• Court: Colorado Supreme Court

71 P. 388

30 Colo. 488

PEOPLE ex rel. LINDSLEY, Dist. Atty., v. DISTRICT COURT OF FREMONT COUNTY et al.

Supreme Court of Colorado

January 12, 1903

APPLICATION FOR prohibition by the people, on the relation of Henry A Lindsley, district attorney, against the district court of Fremont county and Morton S. Bailey, judge. Dismissed.

Stuart & Murray and James F. Callbreath, for petitioner.

PER CURIAM.

This is another application for leave to institute a proceeding in prohibition growing out of the action of the district court of Fremont county, had primarily in an action commenced by Dennis Sullivan against the Denver Gas & Electric Company referred to in Callbreath v. District Court, 71 P. 387. So far as the present application is based upon the alleged want of jurisdiction of the district court to appoint a receiver and its action in denying the petition of intervention presented, we shall not determine these questions, for the reason that they have never been presented to the lower court for its consideration and determination. Callbreath v District Court, supra. If the lower court has assumed to enter orders without the requisite notice to the interested parties, that is an error which it has the authority to correct on motion by any one entitled to be heard. No such motion has been made below. After the proceedings complained of in the Sullivan case were had, the district attorney commenced an action in quo warranto against the Denver Gas &amp Electric Company in the district court of Arapahoe county. On motion of the company that action was transferred to the district court of Fremont county. The district attorney then moved to have the cause retransferred to the court in which it was originally brought, and also at the same time moved to have the action in which the receivership proceedings were had transferred to the same tribunal. These motions were based upon the ground that the parties resided in the county of Arapahoe; that the cause of action arose in that county; that summons in the quo warranto case was served there; that the convenience of witnesses demanded its trial in that county; that the judge of the district court of Fremont county was so prejudiced that the people and intervener could not obtain a fair and impartial trial; and that the parties in the receivership proceedings had fraudulently conspired to confer jurisdiction in that case upon the district court of Fremont county. These motions have been denied. The petitioner claims that the district court is without further jurisdiction; that it abused its discretion in denying these motions; and that a writ of prohibition should now issue from this court directing the lower court to proceed no further in either of the actions than to enter an order removing them to the district court of Arapahoe county.

From the earliest decisions of this court on the subject of prohibition down to the present time, it has uniformly been held that the only question which can be considered is whether the inferior tribunal is exercising jurisdiction which it does not possess, or, having jurisdiction, has exceeded its legitimate powers. It has also been uniformly held that a writ of prohibition cannot be converted into a writ of error for the purpose of correcting mere errors in the exercise of a jurisdiction with which an inferior tribunal is invested. Leonard v. Bartels, 4 Colo. 95; People v. District Court, 6 Colo. 534; McInerney v. City of Denver 17 Colo. 302, 29 P. 516; People v. District Court, 29 Colo. 5, 66 P. 896; People v. District Court, 29 Colo. 83, 66 P. 1068. We have also held that our authority to entertain proceedings in prohibition is conferred by the constitution, and is not dependent upon or governed by the statute or Code on that subject (People v. District Court, 26 Colo. 386, 58 P. 604,...