Schuman v. Sternberg
| Decision Date | 02 February 1937 |
| Docket Number | Case Number: 26343 |
| Citation | 179 Okla. 118,65 P.2d 413,1937 OK 80 |
| Parties | SCHUMAN et al. v. STERNBERG et al. |
| Court | Oklahoma Supreme Court |
¶0 1. PROHIBITION - OFFICE OF WRIT - Generally not Employed to Control Actions of Officers Exercising Ministerial Functions.
The office of the writ of prohibition is to prevent an inferior judicial or quasi judicial tribunal, as defined in section 2, art. 7, Constitution, from exercising jurisdiction which it does not have or from exceeding the jurisdiction conferred upon it by law, and as a general rule is not employed to control the actions of officers exercising purely ministerial functions.
2. SAME - Order on Motion to Retax Costs Appealable and Resort to Prohibition Unauthorized.
An order entered upon motion after judgment to retax costs is a final order within the meaning of section 529, O. S. 1931, as one "affecting a substantial right * * * made upon a summary application in an action after judgment," and is appealable, and such appeal affords an adequate remedy to the party resisting the collection of such costs, and resort to prohibition is unauthorized.
Original application by W.H. Franks for writ of prohibition against Sam Coleman and W.C. Mosier, Court Clerk and Sheriff, respectively, of Pottawatomie County. Writ denied.
Robert Burns, for petitioner.
Thos. C. Wyatt, County Atty., and Foy Edwards, Asst. County Atty., for respondents.
¶1 W.H. Franks, one of the defendants in error in this case, by his separate petition filed herein seeks a writ of prohibition directed to the court clerk and sheriff of Pottawatomie county commanding them to desist from issuing and levying execution upon his property to satisfy costs accruing in the lower court by reason of certain proceedings had therein subsequent to judgment in the cause and appeal therefrom.
¶2 The defendants in error, Selma Sternberg and W.H. Franks, obtained judgment in the trial court foreclosing, respectively, their first and second mortgages theretofore executed by plaintiffs in error. W.H. Franks purchased the mortgaged premises at sheriff's sale had pursuant to said judgment. The trial court entered its order confirming said sale and authorized the issuance of a writ of assistance under section 424, O. S. 1931, to place the purchaser in possession. The plaintiffs in error herein appealed to this court from the order of confirmation. Upon Franks' praecipe a writ of assistance issued and the sheriff executed the same and incurred considerable costs, which were by the clerk taxed in the case and remained unpaid. The clerk has now issued an execution against Franks, and the sheriff is about to levy same upon his property to satisfy said costs. Petitioner asserts that the costs in question represent sheriff fees which are illegal and unauthorized by the statutes.
¶3 Franks filed his motion in the trial court to retax the costs complained of, and the motion was denied. He now says that the office of said motion was merely to afford the trial court and its officers, the respondents, an opportunity to avoid or discontinue their alleged unwarranted action before seeking the writ from this court. It is now urged that an appeal from the trial court's order on the motion would have been futile for the reason that said court was without jurisdiction of the matter in that the cause was at that time pending in this court on appeal.
¶4 The petitioner contends that, in view of the foregoing circumstances, this court, under its supervising powers over lower courts as granted by section 2, art. 7, of the Constitution, may prohibit the threatened illegal action of the officers of such courts.
¶5 We are unable to agree with this contention. As a general rule, this court's general supervising control is confined by the aforesaid section of the Constitution to "all inferior courts and all commissions and boards created by law." The offices of court clerk and sheriff do not fall within this classification. Under the foregoing constitutional provision, this court is authorized to issue the writ of prohibition, but the functions of such writ are not enlarged by the Constitution or the statutes beyond the functions thereof as recognized at common law. Its office there was to restrain subordinate courts and inferior judicial tribunals from exercising their jurisdiction. 50 C. J. 654, sec. 3. In the absence of an enlargement of the office of the writ by Constitution or statute, its uses should be, and are, restricted to those recognized at common law. Id.
¶6 Such is the recognized function of the...
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...more recently, such cases as First National Bank & Trust Co. of Vermilion v. Kirby, 62 S.D. 489, 253 N.W. 616 (1934); Schuman v. Sternberg, 179 Okl. 118, 65 P.2d 413 (1937); and Darlington v. Basalt Rock Co., Cal.App., 10 Cal.Rptr. 556 (D.Ct. App.1961). New York has held that an order direc......
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