State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County, 1248

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBLUME, Justice.
Citation31 Wyo. 413,227 P. 378
PartiesSTATE EX REL. POSTON ET AL. v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT, FREMONT COUNTY ET AL
Decision Date01 July 1924
Docket Number1248

227 P. 378

31 Wyo. 413

STATE EX REL. POSTON ET AL.
v.
DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT, FREMONT COUNTY ET AL

No. 1248

Supreme Court of Wyoming

July 1, 1924


Original proceedings in prohibition by the State of Wyoming on the relation of Lon J. Poston and others, against the District Court of the Eighth Judicial District in and for the County of Fremont and Robert R. Rose, Judge. Heard on demurrer to the petition.

David J. Howell, Attorney General and Hagens & Murane for the demurrer.

The district court had jurisdiction of the subject-matter and of the parties; a writ of prohibition will not issue for lack of jurisdiction or proceedings in excess of jurisdiction until the parties have submitted the question to the inferior court and relief has been denied; the petition fails to show the question to have been submitted below; the writ will issue only in extreme cases; and in the absence of an adequate remedy in the ordinary course of the law; it will not issue to correct errors of law or fact where the inferior court has jurisdiction of the subject-matter and the person; the statute does not require the complaint to be filed with the clerk of the court; there is nothing in the petition showing that a proper complaint was not presented to the Judge; district courts have jurisdiction in estate matters; petitioners have an adequate remedy by appeal, Chapter 144, Laws 1921; the foregoing points are supported by 32 Cyc. 602-624; State v. Ellis, 18 So. 636; State ex rel Bank v. The Dist. Court, 5 Wyo. 227; Dobson v. Westheimer, 5 Wyo. 36; State ex rel Bank v. Dist. Court, 12 Wyo. 550; State ex rel Mau v. Ausherman, 11 Wyo. 419; State v. True, 26 Wyo. 314; Weidenhoft et al. v. Primm, 16 Wyo. 340; Ex Parte Okla. (220 U.S. 198) 55 Law Ed. 435; Board v. Maughan (Utah) 101 P. 581; Johns v. Nolting, 29 Cal. 510; People ex rel McCullum v. Gebhardt (Mich.) 118 N.W. 16; Bacon v. Perkins, (Mich.) 58 N.W. 835; Mesmer v. Perkins, 61 Cal. 151; Ex Parte Frederick Gordon (104 U.S.) 26 Law Ed. 814; Ex Parte Detroit Co., (104 U.S.) 26 Law Ed. 815; Borello v. Superior Court (Cal.) 96 P. 404; the case of State ex rel district court supra seems to be clearly in point; also Dobson v. Westheimer supra; the petition alleged that the estate is insolvent and under these circumstances the executrix is a trustee for creditors of the estate, Bank v. Ludvigsen, 8 Wyo. 230; the probate code contains a number of summary proceedings which may be followed in the administration of estates; Section 6685 C. S. providing for a court order requiring the production of a will is an example; defective service does not warrant the issuance of a writ of prohibition, 111 A. S. R. 922.

Lacey & Lacey and William E. Mullen, contra.

The petition shows that respondent was without jurisdiction in that, (a) no sworn complaint was filed in the court; (b) nothing was served on relators, except copies of a court order; (c) no citation was issued by relators as required by the statute; (d)) copies of court orders served threatened the imposition of penalties provided by Chapter 437 C. S.; (e) none of the jurisdictional facts required by Section 6831 C. S. were set forth in a complaint and filed; (f) that the absence of a filed complaint precluded answer or joinder of issue as required by Chapter 144, Section 2, Laws 1921, it shows that relators have no remedy by appeal or otherwise, the demurrer admits the allegations of the petition, Elliott v. Court, 168 Cal. 727, 145 P. 101; a demurrer to the petition is in effect an application on notice for a preemptory writ of prohibition; the facts alleged in the application being regarded as true, State v. McGee, 15 So. Dak. 247; State v. Barnett, 245 Mo. 99; the record of the court's proceedings must show its jurisdiction, Taber v. Douglas, 101 Me. 367; complaints under 6831-6832 C. S. must be filed in the court and allege facts sufficient to give jurisdiction, State v. Court (Mont.) 89 P. 62; such complaints must describe the property, 1 Church P. L. & P. 538; 1 Rose P. L. & P. 448, and also inability to obtain the information elsewhere, Price v. Laing, 67 W.Va. 373; if executor has knowledge no discovery is required, Simms v. Guess, 52 Ill.App. 543; provisions of Code of Civil procedure govern, 6783 C. S., Chapter 144, Laws 1921; Ullman v. Abbott, 10 Wyo. 107; Weidenhoft v. Primm, 16 Wyo. 351; Barrett v. Barrett, 22 Wyo. 293; respondent is required to urge his objections to complaints before submitting himself for examination, Mohlke v. People, 117 Ill.App. 595; if a claim of title, lien, or indebtedness, or possession under a claim of right is shown, the proceedings must be dismissed, Raymond v. Raymond, 134 Ark. 484, Humbarger v. Humbarger, 72 Kans. 412; In re Heinze, 224 N.Y. 1; Bank v. Sheffler, (Okla.) 186 P. 479; Ex Parte Casey, 71 Cal. 269; Tomsky v. Court, 131 Cal. 620; the statute clearly requires the filing of a complaint under oath; process as provided by statute is necessary to confer jurisdiction, Caldwell v. State, 12 Wyo. 206, Lobell v. Co., 19 Wyo. 170; In re Big Laramie River, 23 Wyo. 459; the statute 6831 C. S. requires the issuance and service of a citation, if it did not, Section 6735 C. S. would govern; the statute prescribes the contents of citations, 6732-6734 C. S., the filing of petition and issuance of citation are jurisdictional requirements, San Francisco v. Court (Cal.) 48 P. 379; Carpenter v. Anderson, (Tex.) 77 S.W. 291; the words citation and notice are not synonymous, Perez v. Perez, 59 Tex. 322; 4 Ency. P. & P. 538; Johns v. Bank (Ariz.) 56 P. 725; service of process is a pre-requisite of jurisdiction, 15 C. J. 798; Reynolds v. Stockton, 140 U.S. 254; State v. Muench, (Mo.) 117 S.W. 25; legal service is required to confer jurisdiction of the subject-matter of a suit, Loan Ass'n. v. Dyer, (Del.) 81 A. 469; Aaron v. Co., 112 N.C. 189; Match v. Ry. Co. (N. C.) 112 S.E. 529; Karr v. Karr, 19 N. J. Eq. 427; Cohen v. Trowbridge, 6 Kans. 385; Kent v. Honsinger, 167 F. 619, no action is commenced until service or appearance of defendant, Schroeder v. Ins. Co., 104 Ill. 71; the rule requiring appearance and objection below before issuance of the writ will be justified, and is subject to exceptions which have been recognized by this court; (a) lack of opportunity to present objections (b) when want of jurisdiction is disclosed on the face of the record, State v. Court, 12 Wyo. 552, also where the proceedings are ex parte, Havermeyer v. Court, 84 Cal. 327, 10 L. R. A. 627; also when no service has been made, 32 Cyc. 624; no preliminary objection is necessary where want of jurisdiction is apparent on the face of the proceedings below, People v. Court, 29 Colo. 182; State v. White, 40 Fla. 297; State v. Aloe, 152 Mo. 466, 47 L. R. A. 393; the present case presents all of the foregoing exceptions; where a court attempts to proceed without any jurisdiction, application for the writ may be made as a matter of right, Marsh v. O'Brien, (W. Va.) 96 S.E. 795; lack of jurisdiction may exist with reference to subject-matter generally or to excess of jurisdiction in the case itself, State v. McQuillin, (Mo.) 171 S.W. 72; prohibition will lie to prevent trial on appeal for want of sufficient notice, State v. Court (Wash.) 48 P. 733; Parker v. Marco, 136 N.Y. 585; People v. Inman, 74 Hun. (N. Y.) 130; State v. Mitchell, 2 Bailey, (S. C. Law) 225; a prohibition will issue to prevent a tribunal from exercising an excess of power over matters of which it may take cognizance, People v. Fitzgerald, (N. Y.) 15 A.D. 539; State v. Court (Wash.) 46 P. 1031; People v. Court, 26 Mich. 100; State ex rel Atty. Gen. (Ala.) 43 So. 490; State v. Court (Wash.) 153 P. 317, also as against contempt proceedings for disobedeince of a void order, Burke v. Court, (Cal.) 93 P. 1058; Cline v. Longan (Nev.) 101 P. 553; the Wyoming cases of State v. Dist. Court and Dobson v. Westheimer are not in point; there are other Wyoming cases not referred to in defendants brief, State v. Bank, 13 Wyo. 184 and Keefe v. Court, 16 Wyo. 381, the first denying and the latter granting the writ; it is suggested in defendant's brief that the remedy sought is analogous to that exercised by bill of discovery, a right limited to discovery of material facts relating to plaintiff's case, but not to facts relating to the defense or of defendant's evidence, Franklin Tp. v. Crane (N. J.) 85 A. 408, nor to pry into the case of an adversary to learn its strength or weakness, Carpenter v. Winn, 221 U.S. 533; Film Co. v. Sampliner, (C. C. A. 6.) 95; Interstate Commission v. Brimson, 154 U.S. 447; it does not sanction fishing expeditions into private papers, Federal Trade Com. v. Co., 44 Supreme Court Reports 336.

David J. Howell and Hagens & Murane in reply.

The scope of the statute is but little broader than the authority possessed by courts to issue subpoenas duces tecum, being also analogous to proceedings in aid of execution, provided by Section 6076 C. S., or garnishment proceedings, 6145 C. S., or the enforcement of injunction orders 6178 C. S., upon the point of a plain, adequate and speedy remedy by appeal we cite Bank v. Steinhoff, 7 Wyo. 464 and Mau v. Stoner, 12 Wyo. 478 also Porter v. State, 16 Wyo. 131; Ex Parte Bergman, 3 Wyo. 396; in probate matters the jurisdiction of the District Court is presumed.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION [227 P. 379]

[31 Wyo. 419] BLUME, Justice.

This is an original action in this court for a writ of prohibition against the District Court of Fremont County, Wyoming, and the judge thereof. The petition alleges, in substance, the following facts:

That on March 7th, 1924, there was filed in the office of the clerk of the district court of Fremont County, Wyoming, the following order, to-wit:

"State of Wyoming County of Fremont

In the District Court Eighth Judicial District

No. 908.

In the matter of the Estate of Jacob A. Delfelder,...

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23 practice notes
  • State v. District Court Sixth Judicial District, 1776
    • United States
    • United States State Supreme Court of Wyoming
    • July 26, 1932
    ...without jurisdiction; prohibition is the proper remedy. State v. Court, 37 Wyo. 516; State v. Ausherman, 11 Wyo. 410; State v. Court, 31 Wyo. 413; State v. Court, 37 Wyo. 169; State v. Court, 38 Wyo. 427; State v. Court, 34 Wyo. 288; State ex' rel. Poston v. Court, 39 Wyo. 24. The cause was......
  • Leonard v. Willcox, No. 179.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 7, 1928
    ...to be brought to his attention before recourse is had to a petition for a writ of prohibition. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 379, 35 A. L. R. 1082, and annotation; Board v. Holt, 54 W. Va. 167, 46 S. E. 134, 135. In the absence of statutory provision, the objec......
  • Taylor v. Girard, 6198
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1934
    ...Ex parte S. J. Jones, supra.) The writ of prohibition is not favored and is issued with caution. ( State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 33 A. L. R. 1082.) [54 Idaho 793] If there was another adequate remedy open to petitioners prior to the holding of the primary ......
  • Delfelder v. Teton Land & Investment Co., 1792
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...in error and her husband, nearly twelve years ago, some of the particulars of which are detailed in the reports. State v. District Court, 31 Wyo. 413; State v. District Court, 39 Wyo. 24; Poston v. Delfelder, 39 Wyo. 163. It is believed that the contentions of the plaintiff in error in the ......
  • Request a trial to view additional results
23 cases
  • State v. District Court Sixth Judicial District, 1776
    • United States
    • United States State Supreme Court of Wyoming
    • July 26, 1932
    ...without jurisdiction; prohibition is the proper remedy. State v. Court, 37 Wyo. 516; State v. Ausherman, 11 Wyo. 410; State v. Court, 31 Wyo. 413; State v. Court, 37 Wyo. 169; State v. Court, 38 Wyo. 427; State v. Court, 34 Wyo. 288; State ex' rel. Poston v. Court, 39 Wyo. 24. The cause was......
  • Leonard v. Willcox, No. 179.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 7, 1928
    ...to be brought to his attention before recourse is had to a petition for a writ of prohibition. State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 379, 35 A. L. R. 1082, and annotation; Board v. Holt, 54 W. Va. 167, 46 S. E. 134, 135. In the absence of statutory provision, the objec......
  • Taylor v. Girard, 6198
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1934
    ...Ex parte S. J. Jones, supra.) The writ of prohibition is not favored and is issued with caution. ( State ex rel. Poston v. District Court, 31 Wyo. 413, 227 P. 378, 33 A. L. R. 1082.) [54 Idaho 793] If there was another adequate remedy open to petitioners prior to the holding of the primary ......
  • Delfelder v. Teton Land & Investment Co., 1792
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...in error and her husband, nearly twelve years ago, some of the particulars of which are detailed in the reports. State v. District Court, 31 Wyo. 413; State v. District Court, 39 Wyo. 24; Poston v. Delfelder, 39 Wyo. 163. It is believed that the contentions of the plaintiff in error in the ......
  • Request a trial to view additional results

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