Schaetzley v. Wright
| Decision Date | 08 October 1954 |
| Citation | 271 S.W.2d 885 |
| Parties | William F. SCHAETZLEY et al., Petitioners, v. Hon. Coleman WRIGHT, Judge of 12th Circuit Court District, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
Marvin J. Sternberg, Durward W. Maynard, Louisville, H. Elliott Netherton, Clark & Manby, LaGrange, for petitioners.
CULLEN, Commissioner.
Certain residents of a subdivision in Oldham County, known as Lake Louisvilla petition this Court for an order prohibiting the judge of the Oldham Circuit Court from entering a judgment incorporating a portion of the subdivision as a sixth-class city. In proceedings in his court for incorporation of the city, pursuant to KRS 81.040 to 81.070, the judge indicated he would enter judgment incorporating the city, but withheld entry of the judgment for the purpose of enabling the protesting residents to file this petition for an order of prohibition. This is the same procedure that was followed in Engle v. Miller, 303 Ky. 731, 199 S.W.2d 123.
The statute KRS 81.060, denies an appeal from a judgment incorporating a city, so if the petitioners have any remedy it can only be through an order of prohibition. The petitioners seek an order of prohibition on the customary grounds that the judge is acting without jurisdiction, or erroneously within his jurisdiction, the petitioners will suffer great and irreparable injury, and there is no adequate remedy by appeal.
It is alleged that the judge is acting without jurisdiction because the form of the petition filed in his court, for incorporation of the city, did not comply with KRS 81.050, in that it did not set out the metes and bounds of the proposed city, not the number of voters in it. Actually, the petition that was circulated among the residents of the proposed city, and signed by those favoring incorporation, consisted only of a sheet stating at the top that the undersigned voters of the Lake Louisvilla Subdivision petition the court to be incorporated as a city. However, there was attached to the petition, when it was filed in court, an affidavit showing the number of voters in the area, and a paper entitled 'Complaint Amended Petition to Incorporate Lake Louisvilla,' in which the metes and bounds of the proposed city were set out. The contention here is that the petition as circulated was required to embody the information specified by the statute, and that it was not a compliance with the statute to append subsequently other papers containing the information.
It is alleged that the judge is acting erroneously within his jurisdiction because there was not adequate proof, in the proceedings in circuit court, of the metes and bounds of the proposed city, or of the authenticity of the signatures on the petition for incorporation.
The petitioners in this Court seem to be proceeding on the assumption that whenever a lower court is acting without jurisdiction, or erroneously within its jurisdiction, there is no remedy by appeal, and substantial rights are involved, the right to an order of prohibition follows as a matter of course. That is not the law of this jurisdiction.
This Court on several occasions has pointed out that its original jurisdiction to issue writs to control the inferior courts cannot be invoked as a substitute for an appeal when no appeal lies. Sizemore v. Stivers, 287 Ky. 153, 151 S.W.2d 1059; McFarland v. Gilbert, 276 Ky. 423, 124 S.W.2d 473. Also, that the issuance of such writs is within the discretion of the Court of Appeals. Meredith v. Sampson, 277 Ky. 263, 126 S.W.2d 124; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395.
We are inclined to think that a misunderstanding of the...
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