Tehan v. Brown

• Citation: 191 Mass. 92,77 N.E. 313
• Parties: TEHAN v. BROWN et al., Municipal Court Justices.
• Decision Date: 05 March 1906
• Court: United States State Supreme Judicial Court of Massachusetts

191 Mass. 92

77 N.E. 313

TEHAN v. BROWN et al., Municipal Court Justices.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1906

COUNSEL

Clarence F. Eldridge, for petitioner.

E. M Schwarzenberg, for respondents.

OPINION

SHELDON, J.

This is a petition for a writ of prohibition against the justices of the municipal court, seeking to prohibit them from requiring the petitioner to assign to his judgment creditor, Louis Isenburger, under poor-debtor proceedings his interest in two liquor licenses held by him and one Margaret Tehan. At the hearing before a justice of this court, it appeared that said Isenburger obtained a judgment and execution for more than $800 damages against the petitioner, and duly cited him into the poor-debtor session of the municipal court of the city of Boston, where he was examined under Rev. Laws, c. 168, §§ 17-20; that the petitioner and said Margaret held two licenses, respectively of the first and fourth class mentioned in Rev. Laws, c. 100, issued to them by the board of police of the city of Boston, to sell intoxicating liquors at the place therein named for the term of one year from May 1, 1905. It also appeared that the justice of the municipal court before whom the hearing was held had declared that he should enter an order under Rev. Laws, c. 168, requiring the petitioner to execute and deliver to said Isenburger a transfer and assignment of said licenses and all his right, title, and interest therein. The proceedings in the municipal court are still pending, and have not been terminated. On these facts, the court ruled that the petition could not be maintained, denied the writ of prohibition and dismissed the petition; and the case comes before us on the petitioner's exceptions to this ruling and order.

A preliminary question is whether exceptions can be alleged in such a case as this. It is to be observed that the writ of prohibition is a civil common-law writ. 'It usually issues from the Court of King's Bench, and is directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion either that the cause originally or some collateral matter arising therein does not belong to that jurisdiction.' Shaw, C.J., in Washburn v. Phillips, 2 Metc. 296, 299. And the right of exception is given by our statute in the most general terms to any one who is aggrieved by an opinion, ruling, direction or judgment of this court or of the superior court, which is rendered upon any matter of law in any civil cause, according to the course of the common law or otherwise, tried by a jury or heard by the court, with certain exceptions not material to this question. Rev. Laws, c. 173, § 106. Accordingly we proceed to consider the exceptions.

The writ of prohibition is used to prevent a court from exercising a jurisdiction which it does not possess. Washburn v. Phillips, ubi supra; Vermont & Massachusetts Railroad v. County of Franklin, 10 Cush. 12; Day v. Aldermen of Springfield, 102 Mass. 310; Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 34 Am. Rep. 338; Henshaw v. Cotton, 127 Mass. 60. Whether the writ can be granted in this case depends accordingly upon whether the municipal court of the city of Boston has the jurisdiction to make the order here in question.

The right to arrest the body of a defendant upon mesne process or of a judgment debtor upon execution is now fixed and regulated by the provisions of chapter 168 of the Revised Laws; and those which apply to the case at bar are contained in the sections of that chapter numbered from 17 to 25 inclusive. Substantially, these sections provide that no arrest shall be made on an execution unless it is for an amount as large as $20 exclusive of all costs, and unless the judgment creditor or some one in his behalf makes affidavit and proves to the satisfaction of the proper tribunal (in this case the municipal court of the city of Boston) that the debtor has property not...