Union P. R. Co. v. Wolfe

• Decision Date: 09 November 1914
• Docket Number: 4100
• Citation: Union P. R. Co. v. Wolfe, 144 P. 330, 26 Colo.App. 567 (Colo. App. 1914)
• Parties: UNION PAC. R. CO. v. WOLFE, Justice of the Peace, et al.
• Court: Colorado Court of Appeals

144 P. 330

26 Colo.App. 567

UNION PAC. R. CO. v. WOLFE, Justice of the Peace, et al.

No. 4100

Court of Appeals of Colorado

November 9, 1914

Error to District Court, City and County of Denver; John A. Perry Judge.

Petition by the Union Pacific Railroad Company for a writ of certiorari to Richard Wolfe, as Justice of the Peace, and another.There was a judgment quashing the writ, and petitioner brings error.Reversed and remanded.

Hughes & Dorsey, of Denver, for plaintiff in error.

W.W Hunt, of Denver, for defendants in error.

KING J.

In a suit entitled Spencer v. Smarsty, pending in the justice of the peace court, a writ of attachment against Smarsty was delivered to the constable for service.In aid of this attachment, the constable issued a garnishee summons directed to the Union Pacific Railroad Company, plaintiff in error, and attempted to serve it by reading it to and leaving a copy with an employé of said railroad company who was not an officer or agent of said corporation upon whom it was competent to make service, and thereupon returned the summons as so served upon the corporation.The company made no answer concerning its indebtedness to the defendant in the attachment suit, but entered its special appearance in the justice court and moved to quash the service of the garnishee summons, because the pretended service was not lawful.This motion was denied, and thereafter, on the 18th day of November, 1912, default judgment was rendered against the garnishee in favor of said Spencer.November 30th the company filed in the district court its petition for writ of certiorari to remove the said cause to the district court.The writ was accordingly issued and served.Motion was made to quash the writ and dismiss the cause, assigning as reasons therefor that the petition did not state facts sufficient to support the writ, did not state the facts required by the statute to be stated, and did not show that it was not in the power of the petitioner to take an appeal in the ordinary way.The motion was sustained, the writ quashed, and procedendo to the justice court ordered from which judgment a writ of error was sued out.

The district court held that service had not been made upon the railroad company, therefore the judgment was void for want of jurisdiction; that from said judgment the garnishee had the right to appeal to the county court, but by thus appealing it would have waived the jurisdiction of the justice over its person.With such ruling there seems to be no controversy; but the court further held that the garnishee could obtain no relief for want of jurisdiction under writ of certiorari, because that writ would not issue to review a judgment in any case where there is an appeal, and that, if the garnishee desired to contest the jurisdiction of the justice over its person, it could do so by applying for an injunction restraining the enforcement of the judgment.This ruling is assigned as error.

In this state there are two proceedings by writ of certiorari: One is provided for in section 297, Mills' Ann.Code (section 331, Code of 1908), which we will call the Code remedy; the other is provided for by general statute(Mills'Ann.St.1912, § 4402[144 P. 331] et seq.;R.S.1908, § 3837 et seq.), and will be called the statutory remedy.The Code remedy is for the purpose of reviewing the action of any inferior tribunal, board, or officer exercising judicial functions, for excess of jurisdiction, or gross abuse of discretion, where there is no appeal, or, in the judgment of the court, any plain, speedy, and adequate remedy.The statutory remedy is for the purpose of securing a trial de novo of causes previously heard by justices of the peace, where, without fault on his part, the petitioner is unable to take his appeal in the ordinary way.Small v. Bischelberger, 7 Colo. 563, 4 P. 1195;Axelson v. People, 45 Colo. 285, 101 P. 54.It is important to bear in mind the distinction between these two procedures, and the remedy which they afford, for there is a clear line of demarcation which is decisive of this case.Under the Code, the writ may be granted by any court of record to any inferior tribunal, including justices of the peace, but only for the purpose of reviewing the judgment upon the question of want or excess of jurisdiction (or gross abuse of discretion).The merits of the case are not in issue.The inquiry is limited to whether the court below exceeded its jurisdiction or greatly abused its discretion.People ex rel. v. District Court, 22 Colo. 422, 425, 45 P. 402;People ex rel. v. Board of Commissioners, 27 Colo. 86, 89, 59 P. 733;People ex rel. v. Court of Appeals, 32 Colo. 147, 75 P. 407.To all practical intents and purposes, this writ is the same as the common-law writ.Ellis v. People, 15 Colo.App. 341, 62 P. 232;State Board v. Carpenter, 16 Colo.App. 436, 66 P. 165.

The statutory writ may be issued by judges of the district and county courts, but only to remove causes from before justices of the peace.Its purpose is to bring the case up for trial de novo upon the merits.It is a mere substitute for an appeal (State v. Harcourt, 38 Colo. 243, 247, 88 P. 855), and is granted only when, for some reason, it is not within the power of the party to take an appeal in the ordinary way, and upon a petition showing that the judgment before the justice was not the result of applicant's negligence, that the judgment, in his opinion, was erroneous and unjust, wherein such error and injustice consist, and the particular circumstances which prevented applicant from taking an appeal in the ordinary way.It provides no remedy for excess of jurisdiction, or want of jurisdiction of the person.By special statutory provision (section 4410, M.A.S.;section 3845, R.S.1908) the question of the jurisdiction of the person is waived by taking an appeal.Deitz v. City of Central, 1 Colo. 323, 330;Craig v. Smith, 10 Colo. 220, 15 P. 337;U.P. Ry. Co. v. De Busk, 12 Colo. 294, 296, 20 P. 752, 3 L.R.A. 350, 13 Am.St.Rep. 221.It is also provided in the statutory proceedings for certiorari that upon the return of the writ, which brings the cause up for trial de novo, "such proceedings shall be had thereon as in case of appeals."The writ then becomes functus officio.State v. Harcourt, supra.It is therefore manifest that, upon trial under the statutory writ, the proceedings being the same as in the case of appeal, and a mere substitution therefor, the question of jurisdiction of the person is waived.Pickering v. Palmer(N.M.)138 P. 198, 50 L.R.A. (N.S.) 1055.

Defendants in error contend that, as to judgments of the justice of the peace, the statutory remedy is exclusive, but that, inasmuch as an appeal could have been taken from the justice of the peace in the ordinary way, certiorari would not lie under either procedure.With this contention we do not agree, under the facts alleged.The Code provision is:

"The writ shall be granted in all cases where an inferior tribunal, board or officer exercising judicial functions, has exceeded its jurisdiction or greatly abused the discretion of such tribunal, board or officer, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy."

This provision of the Code has been construed in People ex rel. L'Abbe v. District Court, 26 Colo. 386, 396, 58 P. 604, 607, 46 L.R.A 850, and in Paul v. Rooks, 16 Colo.App. 44, 47, 63 P. 711.In the former case the court said:

"The mere fact that an appeal lies to a final judgment is not conclusive against the right to issue the writ.Notwithstanding that fact, it may be granted, if, in the judgment of the court, the remedy by appeal is not plain, speedy and adequate.An appeal is not always, and in all circumstances, adequate.The Code does not mean that the writ shall not issue except when the two contingencies combine, of an absence of appeal and inadequate remedy.The language is, 'No appeal, nor plain, speedy and adequate remedy.'This means if, in addition to the lack of jurisdiction, either element, the absence of an appeal or inadequacy, etc., of remedy, is present, the writ of prohibition may go."

In Paul v. Rooks, supra, the court had under consideration the effect of an appeal from a judgment in the justice cou...