State ex rel. Wright v. Barney

• Decision Date: 17 December 1937
• Docket Number: 30058.
• Citation: 276 N.W. 676,133 Neb. 676
• Parties: STATE EX REL. WRIGHT, ATTY. GEN., v. BARNEY, JUSTICE OF THE PEACE, ET AL.
• Court: Nebraska Supreme Court

276 N.W. 676

133 Neb. 676

STATE EX REL. WRIGHT, ATTY. GEN., v. BARNEY, JUSTICE OF THE PEACE, ET AL.

No. 30058.

Supreme Court of Nebraska.

December 17, 1937

[Copyrighted Material Omitted]

Syllabus by the Court.

1. " Where a party answers over after an adverse ruling on his motion or demurrer, and goes to trial on the merits of an issue he has elected to join, he waives the error, if any, in such ruling." Worrall Grain Co. v. Johnson, 83 Neb. 349, 119 N.W. 668.

2. " Under the practice of this court, where the record contains no bill of exceptions and the pleadings are sufficient to support the judgment of the trial court, it will be affirmed." McIntyre v. Mote, 77 Neb 418, 109 N.W. 763.

3. " In the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined." Backes v. Schlick, 82 Neb. 289, 117 N.W. 707.

4. " While the legislature may grant to the district courts such other jurisdiction as it may deem proper, it cannot limit or take from such courts their broad and general jurisdiction which the Constitution has conferred upon them." State v. Nebraska State Bank, 124 Neb. 449, 247 N.W. 31.

5. " It is an imperative duty of the judicial department of government to protect its jurisdiction at the boundaries of power fixed by the Constitution." State v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278.

6. " So much of the common law of England as is applicable to and not inconsistent with the Constitution of the United States, with the organic law of this territory (state), or with any law passed or to be passed by the legislature of this territory (state)," was adopted and declared to be, and now is, the law within Nebraska. 1 Complete Session Laws of Nebraska, 1855-1865, p. 144.

7. The words of the enactment " common law of England," as construed by this court, refer " to that general system of law which prevails in England, and in most of the United States by derivation from England, as distinguished from the Roman or Civil law system." Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 96 N.W. 151, 62 L.R.A. 383, 110 Am.St.Rep. 431, 4 Ann.Cas. 306.

8. The doctrine of " prohibition" not only involves the definition of a substantive right, but has at all times constituted an essential remedy of the common law of England, administered through and by its superior courts of the common law as part of their common-law jurisdiction.

9. The form and terms of our statute enacting the " common law of England" are a valid and effective exercise of legislative power, and, subject to the limitations therein expressed, create and constitute the " common law of England" a part of our substantive law, and are effective to substantially adopt as part thereof the procedure of " prohibition" as it existed at common law, and vest our district courts with original jurisdiction to administer the same.

10. " The common law is in force in the various states of the Union, except in so far as it has been abolished by statute, as to the remedies for enforcing rights and redressing wrongs." 12 C.J. 194.

11. Our Code provides that there shall be but one form of action, which shall be called a civil action. That provision has not changed the substantive rights of the parties. The substance of the common-law rules of legal procedure, and the principles by which the different forms of action were previously governed, still remain as before. The abolition of the common-law names and forms of action has not and cannot change the essential character of judicial remedies.

12. " An affirmative statute giving a remedy not known to the common law does not take away the common-law remedy." 12 C.J. 194. And, " a statute made in the affirmative, without any negative, express or implied, does not take away the common law." 12 C.J. 187.

13. " When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature." 12 C.J. 187.

14. The history of the enactment and repeal by the Nebraska Legislature of the statutory provisions relative to the writ of certiorari in no manner supports the conclusion that the effect thereof is to abolish the writ of prohibition .

15. " The writ of prohibition (in modern practice) is an extraordinary writ, issued by a superior court to an inferior judicial tribunal to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from exceeding its legitimate powers in a matter of which it has jurisdiction." 21 Standard Encyclopedia of Procedure, 801.

16. State v. Hall, 47 Neb. 579, 66 N.W. 642,State v. Troup, 98 Neb. 333, 152 N.W. 748, L.R.A.1915E, 936, and State v. Fulton, 118 Neb. 400, 225 N.W. 28, examined and distinguished.

17. The district courts of this state have ample powers to administer, in proper cases, the remedy which a writ of prohibition affords.

18. Pleadings examined and held to support the judgment of the trial court.

Appeal from District Court, Lancaster County; Frost, Judge.

Prohibition by the State, on the relation of William H. Wright, Attorney General, against Frederick W. Barney, Justice of the Peace, and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

R. F. Stout, of Lincoln, for appellant Barney.

C. J. Campbell, of Omaha, and J. Jay Marx, of Lincoln, for appellants Linch and Johnson.

Perry, Van Pelt & Marti, of Lincoln, Norval Bros., of Seward, Albert Johnston, Wm. Niklaus, Hall, Cline & Williams, and Woods, Aitken & Aitken, all of Lincoln, and Richard C. Hunter, Atty. Gen., for appellee.

Heard before GOSS, C. J., and ROSE, EBERLY, DAY, PAINE, CARTER, and MESSMORE, JJ.

EBERLY, Justice.

This action was commenced in the district court for Lancaster county on November 19, 1936, by a " Petition For a Writ of Prohibition," in which the State of Nebraska, ex rel. William H. Wright, Attorney General, was plaintiff, and Frederick W. Barney, Justice of the Peace, and William R. Linch and Thomas P. Johnson were defendants. These defendants each separately demurred to the petition, which demurrers were by the trial court overruled. The defendants then separately answered in writing, their pleadings each being entitled " Answer * * * to petition and return to alternative writ of prohibition." To the defendants' pleadings the plaintiff replied by a general denial. The issues so formed came on to be heard in the district court without the intervention of a jury, and the state introduced its evidence, at the close of which the defendants each moved the courts orally for a dismissal of plaintiff's petition for the reason that the court had no jurisdiction to issue a writ of prohibition, and that the evidence presented was " wholly insufficient to support the writ." This motion was denied by the trial court. The defendants elected to offer no evidence in their behalf. Thereupon the district court entered findings generally in favor of plaintiff, and awarded a permanent writ of prohibition against the defendants as prayed. From the order of the trial court overruling their separate motions for new trial, defendants appeal.

The defendants failed to preserve the evidence adduced at the trial by a proper bill of exceptions duly allowed and settled by the district court, a fact which materially affects the scope of review on appeal.

It will be noted that, after the demurrers of the defendants were overruled, they each answered, and, upon issues joined, trial was had on the merits. As applicable to these facts, the rule approved in this jurisdiction is: " Where a party answers over after an adverse ruling on his motion or demurrer, and goes to trial on the merits of an issue he has elected to join, he waives the error, if any in such ruling." Worrall Grain Co. v. Johnson, 83 Neb. 349, 119 N.W. 668.See, also, Palmer v. Caywood, 64 Neb. 372, 89 N.W. 1034; Citizens' State Bank v. Pence, 59 Neb. 579, 81 N.W. 623; Lederer v. Union Savings Bank, 52 Neb. 133, 71 N.W. 954; Buck v. Reed, 27 Neb. 67, 42 N.W. 894.

So too, " Under the practice of this court, where the record contains no bill of exceptions and the pleadings are sufficient to support the judgment of the trial court, it will be affirmed." McIntyre v. Mote, 77 Neb. 418, 109 N.W. 763.See, also, McDaniel v. McDaniel, 131 Neb. 639, 269 N.W. 380.

For, " In the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined." Backes v. Schlick, 82 Neb. 289, 117 N.W. 707, 708.See, also, Hayes v. Pilger, 110 Neb. 609, 194 N.W. 727; In re Estate of Raymond, 128 Neb. 568, 259 N.W. 522.

In view of the restrictions embodied in the instant record, the first, and probably the controlling, question is as to the existence of the remedy afforded by the writ of prohibition, and the jurisdiction of the district courts of this state to administer the same. We here use the term " jurisdiction" as expressing the concept of legal power to interpret and administer the law in the premises.

Section 1, article 5 of our Constitution, provides: " The judicial power of the state shall be vested in a supreme court, district courts," etc.

Section 2, article 5, includes: " The supreme court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law."

Section 24 of article 1, the Bill of Rights, provides: " The right to be heard in all civil ...