State v. COORS, 5121

• Decision Date: 10 May 1948
• Docket Number: No. 5121,5121
• Citation: State ex rel. Prince v. Coors, 52 N.M. 189, 194 P.2d 678, 1948 NMSC 23 (N.M. 1948)
• Parties: STATE ex rel. PRINCE v. COORS et al.
• Court: New Mexico Supreme Court

52 N.M. 189

194 P.2d 678

STATE ex rel. PRINCE

v.COORS et al.

No. 5121.

Supreme Court of New Mexico.

May 10, 1948.

[194 P.2d 678, 52 N.M. 190]

Lewis R. Sutin, of Albuquerque, for petitioner.

M. Ralph Brown, and Harry D. Robins, both of Albuquerque, for respondents.

COMPTON, Justice.

This is an original proceeding for writ of prohibition by Lewis Prince against District Court of the Second Judicial District, Bernalillo County, and the Honorable Judges thereof, Henry G. Coors and R. F. Deacon Arledge.

Petitioner was charged by an information filed in the district court of Bernalillo county, with the crime of embezzlement. He claims that the District Court is about to put him to trial for the offense charged without first granting him a preliminary examination; that he has demanded such examination and that it has been denied him, in violation of Article 2, Sec. 14 of the Constitution. He now seeks prohibition to restrain the court from proceeding further.

To the petition, respondent has answered, admitting that relator was being put to trial upon the information. But respondent asserts (1) that relator was given a preliminary examination and (2) that he waived the same.

The single question for our determination is whether prohibition, under the circumstances, is available to relator. We must hold adversely to him.

Whether relator was granted a preliminary examination or waived the same is not an issue to be determined here. It is shown from the record that respondent has jurisdiction both of the subject matter and person. Thus having jurisdiction to determine the cause and render judgment, prohibition cannot be used to supply the ordinary functions of an appeal or writ of error, nor may it be used to restrain an inferior court from making an erroneous decision. State v. District Court Eighth Judicial District, 38 N.M. 451, 34 P.2d 1098; Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726; Appelby v. District Court, 46 N.M. 376, 129 P.2d 338; Heron v. District Court, 46 N.M. 290, 128 P.2d 451; City of Roswell v. Richardson, 21 N.M. 104, 152 P. 1137.

Courts generally support the rule that prohibition, as a method of review, must be excluded where there are other efficientand adequate remedies. Fels v. Justice's Court of City of Berkeley, 28 Cal.App.2d 739, 83 P.2d 721; C. S. Smith Metropolitan Market Co. v. Superior Court, 16 Cal.2d 226, 105 P.2d 587; Sullivan v. District Court of Milwaukee County, 145 Wis. 138, 130 N.W. 58; Ralph v. Police Court of City of El Cerrito, Cal.App., 190 P.2d 632. With us, however, as stated and as shown by the New Mexico cases cited above, it is solely a question of jurisdiction.

In Sullivan v. District Court of Milwaukee County, supra, the court, in considering a case in point, said [145 Wis. 138, 130 N.W. 59]: 'It is further urged by the relatorthat his demand for a preliminary examination should have been granted, that he had never waived the same, and that he could not be lawfully tried until he had such preliminary examination. Even if such a contention be correct, the error of the court in refusing a preliminary examination can be reviewed only upon appeal or writ of error. It cannot be...