State ex rel. Jones v. District Court

• Decision Date: 07 February 1928
• Docket Number: 1483
• Citation: 263 P. 700,37 Wyo. 516
• Parties: STATE EX REL. JONES v. DISTRICT COURT, ET AL. [*]
• Court: Wyoming Supreme Court

263 P. 700

37 Wyo. 516

STATE EX REL. JONES v. DISTRICT COURT, ET AL. ^[*]

No. 1483

Supreme Court of Wyoming

February 7, 1928

ORIGINAL proceeding by the State, on the relation of Edith A Jones, for prohibition to be directed to the District Court of the Ninth Judicial District of Wyoming, Hon. E. H. Fourt Judge thereof, and others.

Writ of prohibition denied.

A. C Allen and O. N. Gibson, for plaintiff.

The order complained of attempts to obstruct the effect of appeal already taken, which is not permissible, 3 C. J. 1255, 2 Enc. Pl. & Prac. 207; Coffee v. Harris, (Wyo.) 197 P. 1; Clavis v. Lane, (Mont.) 74 P. 406; Adams v. Box, 27 N.Y. 640; Elwert v. Irving, (Wash.) 66 P. 123; Fullerton v. Tinkerton, (S. D.) 115 N.W. 91. A trial court and an appellate court cannot exercise jurisdiction at the same time over the same judgment, nor can the appellate court be deprived of its jurisdiction, once acquired, by any order of an inferior tribunal, O'Grady v. Court, (Mont.) 202 P. 575; State v. Court, (Mont.) 250 P. 609, 3 C. J. 1161. The control of the supersedeas was transferred to the appellate court, Draper v. Davis, 102 U.S. 370; Keysor v. Farr, 105 U.S. 265; mandamus will lie to compel the trial court to fix the amount of the bond, 3 C. J. 1162; a trial court is without jurisdiction to make the order complained of, Vosberg v. Vosberg, (Calif.) 70 P. 473; Richardson v. Bohney, (Idaho) 109 P. 727; Mulvey v. Superior Ct., (Calif.) 135 P. 53; 3 C. J. 256. The statute prescribes the undertaking required, Barnes v. Co., (Idaho) 57 P. 267; Omaha Co. v. Kountze, 2 S.Ct. 911; Dorrington v. Conrad, (Kans.) 53 P. 881; Laughlin v. King, 22 Wyo. 8. The conditions of garnishment bonds are fixed by statute and no additional conditions may be imposed, Mayo v. George, (N. M.) 248 P. 885; 6 C. J. 283; 2 Shinn Att. § 704; Collins v. Burns, (Colo.) 26 P. 145. A garnishment lien is not lost by adverse judgment in the main action if appeal be taken, 28 C. J. 380; Waples p. 521; Drake Att. 460, Fitzpatric v. Letten, 123 La. 748. Prohibition will be refused if there be a plain, speedy or adequate remedy at law, but granted if the concurrent remedy is not regarded as adequate, 32 Cyc. 617; State v. Huston, (Okla.) 97 P. 1; it will lie to stay proceedings upon appeal, 32 Cyc. 609; the object of the writ is to restrain tribunals from exceeding their jurisdiction, State v. Carr, (Okla.) 244 P. 1; State v. Court, 5 Wyo. 227. The existence of a remedy by appeal is not a bar to prohibition unless remedy be plain, speedy and adequate, § 9862 R. C. 1921; it is neither speedy nor adequate if its slowness is likely to produce injury or mischief, State v. Court, (Mont.) 224 P. 886; Hammond v. S. Ct., 219 P. 1037; State v. Dist. Co., 34 Wyo. 268; the order is not reviewable on appeal, 3 C. J. 529; a remedy by appeal is inadequate.

M. C. Burk, for respondents.

The district court had jurisdiction to make the order, Bank v. Haun, 213 P. 361; 6411-12 C. S.; 3 C. J. 1313. The attachment was dissolved by judgment and no order was made containing the garnishment in effect; relator had no substantial legal right to be protected, 6150 C. S.; Loveland v. Alvoord, 18 P. 682; Hamilton v. Bell, 55 P. 758; Clark v. Court, 174 P. 681; Green v. Hopper, 167 P. 23; when judgment was rendered the garnishment was released except as to funds sufficient to meet judgment and costs; prohibition is not a writ of right, State v. Chadron, 5 Wyo. 227; relator had an adequate remedy at law or in equity, 3 C. J. 1313; Bank v. Haun, supra; Dobson v. Westheimer, 5 Wyo. 34; an undertaking required to protect against loss of money garnisheed, if the same is to be held, does not encroach upon the supersedeas or garnishment statute, 6412 C. S.; Wells v. Loofborough, 162 P. 375; Nichols v. Ingram, 146 P. 988; Washington Co. v. Weiser Bank, 253 P. 838.

A. C. Allen and O. N. Gibson, in reply.

The only bond that the court would require is that prescribed by Secs. 6411 and 6412 C. S.; defendant's theory that the attachment was dissolved because no order was made continuing same, is unsupported by authority; Loveland v. Alvoord, 18 P. 682; Hamilton v. Bell, 55 P. 758; Clark v. Court, 174 P. 681; Wells v. Loofborough, 162 P. 375; Washington Co. v. Weiser, 253 P. 838; Waring v. Fletcher, 52 N.E. 203. The identical question was involved in Snow v. Duxstad, 23 Wyo. 82; the order requiring relator, in order to preserve her right of stay on appeal, to file within three days a bond of ten thousand dollars, was an illegal and unconstitutional usurpation of authority.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding invoking the original jurisdiction of this court to issue a writ of prohibition to the District Court of the Ninth Judicial District, Honorable E. H. Fourt the presiding Judge thereof, L. B. Gaylord, Sheriff of Fremont County Wyoming, and Elizabeth Wettlin and Herbert G. Wettlin, requiring them to refrain from any further proceedings under an order made by the District Court aforesaid and hereinafter mentioned. The relator alleges, in substance, in her petition, that on June 24, 1925, she instituted in said District Court a civil action, numbered 3736, against Elizabeth Wettlin and Herbert G. Wettlin for the recovery of $ 5400.78; that the same day she filed an affidavit in attachment in said cause alleging non-residence on the part of the Wettlins and also a sufficient attachment bond; that on the 24th day of June, 1925, pursuant to a writ of attachment issued in the cause, Squier Jones, A. E. Vollmer, H. C. Lawer and Charles Swanson were summoned in garnishment as debtors of the Wettlins upon an indebtedness evidenced by a judgment given in said court on July 29, 1922 in case No. 3125, in favor of the Wettlins as plaintiffs, and against the said Jones and Vollmer as defendants, and the said Lawer and Swanson as their sureties, upon a supersedeas bond given by said defendants in an appeal from the said judgment which appeal failed; that upon service of the garnishment process, proceedings under said judgment were stayed; that on the 4th day of August, 1927, upon a trial in said cause No. 3736--another district judge sitting--judgment was entered dismissing relator's cause of action; that on the 5th day of August, 1927, relator served and filed in said cause a notice of appeal from said judgment to this court; that on August 16, 1927, an order was made in said cause staying the judgment aforesaid and execution pending appeal to this court upon relator's filing a bond in the penal sum of $ 1,000; that said bond was duly filed on September 16, 1927 and approved by the clerk of said court; that on September 30, 1927, relator prepared and filed her record on appeal in said cause, and on the same day served upon the Wettlins' attorney in said case her specifications of error; that on September 20, 1927, the Wettlins filed a motion for an order requiring relator to appear in said court on October 1, 1927, to show cause why she should not be required to execute to the Wettlins, or to the said court for their use, an undertaking in the sum of $ 10,000, conditioned that the relator would hold harmless the Wettlins by reason of the retaining the garnishment in effect in the cause pending on appeal to this court--and that relator would pay to the Wettlins any sums remaining unpaid on the judgment in case No. 3125 already described, and that unless such undertaking be given, the garnishment be at once dissolved and stay of execution immediately denied; that the court, without notice to the relator, entered an order nisi, returnable on November 1, 1927, in conformity with the prayer of the motion; that on September 20, 1927, relator filed, in response to this order, her resistance to the same, alleging that the order was issued without the court's having jurisdiction to make and enter it; that thereafter, on October 4, 1927, the matter was heard and the court made the order specifically complained of now, requiring relator to "make, execute and deliver an undertaking in the sum of $ 10,000 to the defendants herein (the Wettlins), with good and sufficient sureties, to be approved by this court or the clerk thereof, conditioned for the payment of all loss, damages, interest and costs that the defendants (the Wettlins) here may suffer on account of such appeal, and any penalty that may be assessed by the Supreme Court in this said cause, and especially the amount of the judgment, interest and costs accrued in the judgment held by these defendants against Squier Jones and A. E. Vollmer, and the garnishment in this cause against the sureties Charles Swanson and H. C. Lawer, being case No. 3125 in this said court; and conditional that if the plaintiff (relator) be successful on her appeal, this undertaking to be void;" and "in default of the furnishing of such undertaking, as above provided, within three days of the date hereof, that execution in this said cause shall not be stayed, and that the defendants herein be permitted to pursue their remedies against said judgment debtors and their sureties;" that exception was saved to this order; that the Wettlins are non-residents of the state of Wyoming; that on information and belief, relator alleges that neither of the Wettlins has any property in this state, except what may be due them under the judgment in case No. 3125 aforesaid; that the dissolution of said garnishment would deprive relator of the security obtained by the attachment bond and the supersedeas bond given by her on appeal; that the District Court aforesaid was without jurisdiction to make, enter or enforce the order last above quoted. Copies of the undertaking in attachment, judgment in case No. 3736, notice of appeal thereon, order staying...