Pincock v. Kimball

• Decision Date: 16 July 1924
• Docket Number: 4154
• Citation: 228 P. 221,64 Utah 4
• Court: Utah Supreme Court
• Parties: PINCOCK, Sheriff, v. KIMBALL, District Judge, et al

228 P. 221

64 Utah 4

PINCOCK, Sheriff, v. KIMBALL, District Judge, et al

No. 4154

Supreme Court of Utah

July 16, 1924

Petition by R. D. Pincock, as Sheriff of Weber County, for a writ of certiorari, against Hon. J. N. Kimball, as Judge of the District Court of Weber County, and others.

Petition denied.

De Vine, Howell, Stine & Gwilliam and A. W. Agee, all of Ogden for plaintiff.

Henderson & Johnson, of Ogden, for defendants.

GIDEON J. WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

GIDEON, J.

On petition of R. D. Pincock, sheriff of Weber county, plaintiff, a writ of certiorari was issued to the district court of Weber county directing that court and the judge thereof to refrain from carrying into effect a decree adjudging plaintiff to be in contempt, and that said court certify "a transcript of the record and proceedings had in said matter in order that the same may be reviewed by this court." In compliance with that writ the record of the proceedings in the district court leading up to the judgment of contempt has been certified to this court. Counsel for the defendants, at the time set for argument, appeared and moved the court to annul and cancel the writ upon the ground that the return shows that the district court had jurisdiction of the parties and the matter in controversy. In that state of the record oral arguments were had, and the parties have filed elaborate written briefs.

The proceedings sought to be reviewed grew out of a judgment obtained in said district court in an action wherein the firm of Henderson & Johnson were plaintiffs, and the Pingree Sugar Company, a corporation, was defendant.

It appears that at the time of filing the original suit by Henderson & Johnson a writ of garnishment was caused to be issued and served on the Bankers' Trust Company of Salt Lake City; that that company answered the writ, and thereafter an amended answer was made by the trust company. It also appears from the amended answer of the trust company that other parties were claiming an interest in the corporate stock sought to be reached by the garnishment. The court thereupon ordered such interested parties to be interpleaded in the action, and directed process to be served on each of the interested parties. Service of process was made. Some of the parties appeared and filed pleadings in the action; others failed to plead; and their defaults were regularly entered. Henderson & Johnson answered the amended return of the garnishee. Upon the issues thus made a hearing was had, and the court made findings of fact, conclusions of law and entered its decree on April 5, 1924, adjudging that the Bankers' Trust Company deliver to the sheriff of Weber county certain certificates of stock therein mentioned, to be sold at public auction by said sheriff in the manner provided by statute for the sale of personal property under execution. The decree further directed disposition to be made of the proceeds of the sale. The Bankers' Trust Company complied with the order by delivering the certificates of stock to the said sheriff, and the sheriff, under an order of sale issued by the clerk of the court, proceeded to advertise the stock for sale. Thereupon one Sanders, not a party to the original proceeding or to the garnishment proceedings, filed written notice with the sheriff, claiming to be the owner of the stock in controversy. The sheriff requested Henderson & Johnson to furnish an indemnity bond. They declined to furnish such bond, insisting that the sheriff was not entitled to any indemnity, and the sheriff refused to make the sale. Thereupon an affidavit was presented to the court reciting the fact of the sheriff's refusal to proceed with the sale. The sheriff was cited before the court, and adjudged guilty of contempt in not complying with the court's decree ordering sale of the corporate stock.

Two questions are argued in the briefs of counsel: First, it is insisted by plaintiff that the findings of the court in the garnishment proceedings do not support the court's decree. Second, that, if the judgment is a valid and binding judgment, nevertheless, where a third party claims to be the owner of the property, the sheriff is entitled to indemnity against loss or damages in the event of the property not belonging to the judgment debtor and being the property of a third person not a party to that action.

On the part of defendants it is claimed that this court will not examine findings to determine whether the same support the judgment, but, if it appears from the record that the lower court had jurisdiction of the parties and of the subject-matter and regularly pursued its authority, the proceedings leading up to the judgment, or, more specifically, the findings of fact made by the lower court, cannot be reviewed by this court under a writ of certiorari. It is also contended by defendants that the sheriff is a mere ministerial officer of the court, and in carrying into effect this decree, if the decree is regular on its face, he is protected against any claim for damages sustained by others claiming the property.

Comp. Laws Utah 1917, § 7376, provides that "the writ of certiorari may be denominated the writ of review." Section 7377 provides that--

"A writ of review may be granted by the Supreme Court * * * when an inferior tribunal board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal board, or officer, and there is no appeal, nor, in the judgment of the court or judge, any plain, speedy, and adequate remedy. * * *"

Section 7383 provides that--

"The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer."

District courts are courts of general jurisdiction. It appears from the record in this case, and is recited in the decree, that all parties to the action had appeared, or had been served with process and had failed to appear, and their defaults had been entered before the trial. It therefore appears that the district court had jurisdiction of the parties as well as of the subject-matter in controversy. The office and the limitations of a writ of this kind are stated in the provisions of the Code above quoted. It is however, earnestly insisted that it has been determined by this court that under a writ of review this court may and will examine into the evidence and findings to determine whether there is any evidence to support the judgment and whether the findings support the judgment entered by the district court. Reliance is had upon the opinions of this court in Gilbert v. Board of P. & F. Com'rs, 11 Utah 378, 40 P. 264, and S. L. C., etc., Co. v. Salt Lake City, 24 Utah 282, 67 P. 791. It may be seriously doubted whether the facts in those cases warrant the application of the rule therein stated to the facts in this case. Conceding, however, that the language found in the opinions in those cases supports the contention of counsel for plaintiff, the rule therein stated has been limited, if not overruled, by later decisions. The statutes quoted do not seem to contemplate that under a writ of this nature this court has authority to inquire into the regularity of the proceedings or into any errors of law that may have been committed by the lower court or tribunal but will confine its considerations primarily to the question whether the lower court or tribunal had jurisdiction of the parties and of the subject-matter, and regularly pursued its jurisdiction therein.

In O. S. L. R. R. Co. v. District Court, 30 Utah 371, at page 374, 85 P. 360, 362, of the Utah report, the court says:

"We therefore adhere to the doctrine announced in the Crooks and Smith Cases that this court will not permit a writ of certiorari to be used to exercise the functions of an ordinary appeal and to review errors and mistakes where the court acted within its jurisdiction. Under the statute the office of a writ of certiorari is to inquire into and to review determinations made without jurisdiction or in excess of the jurisdiction conferred. We have the undoubted right by writ of certiorari to inquire into and to review such determinations."

In Page v. Bank, 38 Utah at page 449, 112 P. 816, 819, it is said:

"The jurisdiction is given by the general appearance, and it exists and the only way it can be questioned under such circumstances is by way of an appeal by which the proceedings may be reversed and set aside because the court erred in assuming jurisdiction, but not because it had no jurisdiction to proceed at all and thus had no jurisdiction even to err."

In Higgs v. Burton, 58 Utah at page 104, 197 P. 728, 730, the court says:

"Certiorari is a speedy remedy where it appears upon the face of the record that the court, board, or officer has proceeded without or in excess of jurisdiction. That remedy was, however, not intended to reach cases where the record may not speak the truth or where fraud or other unlawful means were practiced in obtaining the judgment, as is pointed out in Black on Judgments and in the Utah cases to which reference has just been made. Certiorari proceedings cannot be converted into writs of error."

In Rohwer v. District Court, 41 Utah at page 284, 125 P. 671, 673, the court says:

"The court having acquired jurisdiction of the estate, we cannot, in this proceeding, inquire into the regularity of the proceedings, or whether the court may have erred in matters of law when the acts constituting such assumed irregularities were not without or in excess of jurisdiction."

The great weight of authority in this country is to the effect that under statutes such as ours a writ of review will extend no further...