Walcott v. Wells

• Decision Date: 12 July 1890
• Docket Number: 1,322.
• Citation: 24 P. 367,21 Nev. 47
• Parties: WALCOTT v. WELLS.
• Court: Nevada Supreme Court

24 P. 367

21 Nev. 47

WALCOTT v. WELLS.

No. 1,322.

Supreme Court of Nevada

July 12, 1890

Application for writ of prohibition.

A. C Ellis, for petitioner.

Wren & Cheney and Henry Rives, for respondent.

HAWLEY C.J.

This is an application by the petitioner for a writ of prohibition to prevent the trial of the case of Walcott v. Watson et al. in the district court of White Pine county.

1. Petitioner claims that the court has no jurisdiction to try the case (1) because it has been dismissed; (2) that, if not dismissed, it has been transferred to the circuit court of the United States. The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong damage, and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts and circumstances of each particular case. Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing order and regularity in judicial proceedings in cases where none of the ordinary remedies provided by law are applicable. The writ should not be granted except in cases of a usurpation or abuse of power and not then unless the other remedies provided by law are inadequate to afford full relief. If the inferior court has jurisdiction of the subject-matter of the controversy, and only errs in the exercise of its jurisdiction, this will not justify a resort to the extraordinary remedy by prohibition.

The district court has unquestioned jurisdiction of the subject-matter of the action of Walcott v. Watson et al. Petitioner, after submitting her cause to the jurisdiction of that court, sought to dismiss the action. A controversy arose as to whether or not the action was dismissed before the filing of defendant's answer setting up a counter-claim. This was a question for the district court to decide. It may have erred in deciding it adversely to petitioner; but if it did, the petitioner would have redress by an appeal to this court, if the final judgment should be rendered against her. The same principle applies to the second ground relied upon. It was within the jurisdiction of the court to determine whether or not the case had been transferred. If the court erred in its ruling upon this question, petitioner could have redress in the same manner, by appeal, or she might apply by petition to the circuit court of the United States to have the case transferred,-- a proceeding involving but little, if any, greater expense or delay than will be incurred by this application. Moreover, that question ought not to be raised by this extraordinary remedy in this court. The decision thereon would not be final. If it was considered and decided by this court that the cause was transferred, the circuit court might, when it came up in that court, decide otherwise, and send it back to the state court for trial. It is a principle which lies at the very foundation of the law of prohibition that the jurisdiction is strictly confined to cases where no other remedy exists; and it has always been held to be a sufficient reason to refuse to issue the writ where it clearly appears that the petitioner therefor has another plain, speedy, and adequate remedy at law.

In Martin v. Sloan, after a temporary injunction was dissolved in an action brought by an administrator, the defendant therein moved for an assessment of damages on the injunction bond. During the proceedings a new administrator was substituted. One of the sureties on the injunction bond instituted this proceeding, and applied for a writ of prohibition to prevent the court from proceeding any further upon the motion for damages, on the ground that the original suit had abated, and the jurisdiction of the court terminated. The court said: "This is plainly no case for the issue of a writ of prohibition. Should the trial court enter a finding and judgment for damages against petitioner, and the other sureties on the injunction bond, any one of them aggrieved may review that result by appeal or writ of error, on taking proper steps to that end. Any error that court may make in determining the proper limits of its jurisdiction in the premises can be effectively corrected by any of the usual modes of reviewing judgments. the writ of prohibition should issue only in circumstances where the ordinary remedies are inadequate to the ends of justice. Where, as here, an appeal or writ of error furnishes a complete and effective remedy for an error of the court below prejudicial to the rights of a party, this extraordinary remedy should be denied." 11 S.W. 558. See, also, People v. District Court, 11 Colo. 574, 19 P. 541; Buskirk v. Judge, 7 W. Va. 91; Fleming v. Commissioners, 31 W.Va. 619, 8 S.E. Rep. 267; Supervisors v. Wingfield, 27 Grat. 333; State v. Houston, 40 La. Ann. 393, 4 South. Rep. 50; State v. Rightor, 40 La. Ann. 839, 6 South. Rep. 102; Wilson v. Berkstresser, 45 Mo. 283; People v. Westbrook, 89 N.Y. 152; Turner v. Mayor, 78 Ga. 687, 3 S.E. Rep. 649; People v. Circuit Court, 11 Mich. 403; People v. Hills, 16 P. 405; Powelson v. Lockwood, 82 Cal. 615, 23 P. 143; High, Extr. Rem. § 765 et seq.

2. Petitioner next contends that the writ should be issued to prohibit respondent, Wells, from acting as judge upon the trial of said cause, upon the ground that he is not one of the district judges authorized to try cases in the district court of the state of Nevada; that he is acting as a judge without any authority of law; that he has, in defiance of law and without any jurisdiction, "usurped the authority and power to try said cause, in that the law under which he was appointed and commissioned by the governor is wholly void, and of no effect." On the other hand, it is claimed that the right of respondent, Wells, to exercise and perform the functions of a district judge, and his title to the office of district judge, cannot be raised, tried, or determined in this proceeding; that the constitutionality of the act of the legislature under which he was appointed to the office is not involved, and cannot be attacked, and should not be considered or decided herein; that the validity of the act, in so far as it involves respondent's title to the office, can only be considered and determined in proceedings in the nature of quo warranto, instituted as provided by statute, for the purpose of determining his right to hold said office; that until such a proceeding is instituted, and until it is decided therein that he has no right or title to the office, he is, as to third persons and the public, at least a de facto officer; and that all his acts as such are valid and binding, and that there is no valid reason why he should not be permitted to try petitioner's case, as well as the cases of other litigants pending in the court over which he presides. Which contention is correct? First, let us consider the facts upon which the respective claims are based.

The act supplemental to and amendatory of an act entitled, "An act to redistrict the state," etc., approved March 4, 1885, was approved March 12, 1889; and section 1 of said act reads as follows: "The number of district judges in the judicial district of the state of Nevada shall, from and after the passage of this act, be four; and the governor of said state shall, immediately upon the passage of this act, appoint a district judge from said judicial district to hold such office under such appointment until the next general election, when four district judges from said judicial district shall be elected." St. 1889, p. 122, c. 118. There was, at the time of the passage of this act, a district court, legally constituted, constitutionally organized, and existing by virtue of law, to be held in every county of the state. The office of district judge also legally existed. There was but one judicial district for the entire state, but one district court, and one judicial office in connection therewith to be filled, to-wit, the office of district judge of the district court of the state of Nevada. This office was then filled by three district judges, each having equal and co-extensive jurisdiction and power throughout the state to hold the district court in any county, and to exercise and perform the powers, duties, and functions of the court, and all other duties pertaining to the office of district judge. These judges were authorized to elect a presiding judge, who had, among other things, the power to direct the district judges to hold court in the several counties as the public business might require. St. 1885, p. 60; State v. Atherton, 19 Nev. 332, 10 P. 901.

The legislature, in 1889, deeming it to be necessary for the proper and speedy transaction of judicial business in the district court, and believing that they were authorized to increase the number of district judges, passed the act in question, authorizing the governor to appoint another judge. This act did not create any new court or new officer. It simply provided for an increase of judges. There were to be more officers,--an additional district judge to preside in the district court, and perform the functions and exercise the powers of a district judge throughout the state. The governor, pursuant to the provisions of the supplemental act appointed and commissioned the respondent as a district judge. There was no first, second, third, or fourth judge. But...