Schobarg v. Manson

• Decision Date: 12 April 1901
• Parties: SCHOBARG et al. v. MANSON. [1]
• Court: Kentucky Court of Appeals

61 S.W. 999

110 Ky. 483

SCHOBARG et al. v. MANSON. ^[1]

Court of Appeals of Kentucky.

April 12, 1901

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by C. B. Schobarg and another against L. L. Manson for a writ of prohibition. Judgment for defendant, and plaintiffs appeal. Affirmed.

Tisdale and Gray, for appellants.

B. F. Graziani, for appellee.

DU RELLE, J.

One Louis Christian instituted an action against appellants, Schobarg and Ellis, in the court of appellee, a justice of the peace in Kenton county. Appellants filed an affidavit, and moved to transfer the case for trial to some other justice of the county. This motion being overruled, appellants instituted the present proceeding for a writ of prohibition, to prevent appellee from proceeding with the trial. A demurrer to the petition was sustained.

There seems but one question for decision, and that is whether the filing of the affidavit and entry of the motion to transfer devest a justice of the peace of jurisdiction to try the case. If it does not, a writ of prohibition is not a proper remedy. When sitting as a court to pass upon a motion, a justice of the peace is a judicial officer exercising a judicial function. If acting within the scope of his jurisdiction, a writ of prohibition does not lie to control the exercise of his judicial discretion. If he is wrong in his judgment, it is error, to correct which appeal will lie in proper cases, but not prohibition. This exact question seems decided in an opinion by Judge Paynter in Galbraith v. Williams (Ky.) 50 S.W. 686. The judgment is affirmed.

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Notes:

^[1] Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

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