peace, by the plaintiff in error upon a prom- | proceeding was allowed as an attachment issory note for the sum of $28.16, dated May 5, 1893, and payable three months after date. The suit was brought in attachment under the provisions of the Code of Civil Procedure permitting an action to be brought on a claim before it is due, upon an affidavit for attachment alleging one or more of the statutory grounds, and upon the allowance of the attachment by the court or judge, specifying the amount for which the attachment is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim and the probable costs of the action. Rev. St. §§ 2912-2918. The cause was taken by change of venue to W. P. Carroll, another justice of the peace for the same precinct, and the attachment was sustained upon a hearing on the traverse of the grounds of the affidavit for attachment. Judgment was finally rendered for the plaintiff in error August 7, 1893, one day before the note became due, allowing the statutory period of grace. The cause was taken to the district court for Laramie county by proceedings in error, where the judgment of the justice of the peace was reversed and set aside, and the attachment was dissolved, and the plaintiff in error seeks to reverse this judgment of the district court. before the maturity of the debt. Lyons v. Insley, 32 Kan. 174, 4 Pac. 150. In Ohio, under a similar provision, it was held that, there being no special provision for a discharge of an attachment by proceedings upon a traverse of the original affidavit in attachment before justices, the provisions of the Civil Code permitting a hearing upor the affidavit for attachment and the affidavit traversing the grounds of attachment pplied to proceedings before the justice. Bancroft v. Talbott, 29 Ohio St. 538. So it was held in Nebraska that the provisions of the Civil Code of Procedure for the revival of judgments and actions applied to actions before and judgments rendered by justices of the peace, where the justice's act was silent in that respect, and the court says: "There are many other provisions of the Code applicable to actions before justices of the peace, to which it is unnecessary to refer. It is the duty of the court so to construe the provisions of the Code in their nature applicable to actions in justices' courts as to enable such justices to enforce and protect the rights of parties before them and to administer justice." Miller v. Curry, 17 Neb. 322, 22 N. W. 559. The Kansas constitution provides that the jurisdiction of the justices shall be such as is prescribed by law. constitution conferring jurisdiction upon justices of the peace employs different language than that used in defining the jurisdiction of the justices as contained in the Justices' Code (Rev. St. §§ 3415-3420), where the juris-, diction is minutely conferred or expressly prohibited in certain actions. The Justices' Code was enacted long before the admission of the state into the Union, and specified in what cases such an officer shall exercise jurisdiction and in what not. The constitutional provisions are broader. "The justices Our of the peace herein provided for shall have concurrent jurisdiction with the district court in all civil actions where the amount in controversy, exclusive of costs, does not exceed two hundred dollars, and they shall have such jurisdiction to hear and determine cases of misdemeanor as may be provided by law, but in no case shall justices of the peace have The proceedings are not authorized by the Justices' Code, as no provision appears therein for commencing an action before a debt is due, efther by attachment or otherwise; but it is contended that the provisions of the Code of Civil Procedure are applicable, ir. such case, in courts of justices of the peace, by force of the statute. A section of the Justices' Code found in section 3420 of the Revised Statutes reads as follows: "Every justice of the peace in this territory (state) after qualifying, is hereby authorized to hold his court for the trial of all actions of which jurisdiction is given him by law, and to hear, try and determine the same according to law; and for that purpose, when no special provision is otherwise made by law, such court shall be vested with all necessary powers which are possessed by courts of record in this territory (state); and all laws of a general nature are to apply to such justice's court so far as the same may be applicable, and not inconsistent with the provi-jurisdiction when the boundaries of or title sions of this chapter." It was held in Kansas, where the statute declares that the provisions of the Code of Civil Procedure which are in their nature applicable to the jurisdiction and proceedings before justices of the peace, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace, that a provision of the Code of Procedure for civil cases, permitting an action to be brought by attachment before the maturity of the debt, did not apply to justices of the peace, on the ground that the legislature had covered the whole ground of attachment and garnishment before justices by special provisions of the Justices' Code, wherein no such to real estate shall come in question." Const. Wyo. art. 5, § 22. But it is unnecessary to decide whether this grant of jurisdiction confers upon justices of the peace the power possessed by the district courts to grant an attachment in a suit arising on contract before maturity under the provisions of the Code of Civil Procedure. Indeed, it would hardly be proper in this case to do so, as the attention of counsel has not been called to the effect of this constitutional provision, and our attention was not directed to the question by counsel. Assuming that the main contention of counsel for the plaintiff in error is correct, that the justice of the peace before whom the action was begun, and the like officer before whom the cause was tried, were clothed with the jurisdiction possessed by the district courts in such cases, the judgment of the justice of the peace must be reversed, as it was rendered on the 7th day of August, 1893, one day before the debt sued upon was due, because our statute relating to negotiable instruments follows the rule of the law merchant, and allows three days of grace on such instruments. Sess. Laws 1888, c. 70, § 62. The provisions of the Code under which this action must be maintained, if at all, are that "the plaintiff in such action [in attachment before maturity of the debt] shall not have judgment on his claim before it becomes due." Rev. St. § 2917. So, even if the provisions of the Code invoked do apply to proceedings in the courts of justices of the peace, the justice was without jurisdiction to determine the cause and enter judgment before the note was due; and, if such provisions are not applicable to the case at bar, it is certain that the magistrate had no jurisdiction whatever. There is nothing in the record to indicate that the suit was commenced upon a debt conceded to be not due, except the statement of the grounds of the attachment, which are found only in the language employed in the chapter of the Code authorizing suits by attachment upon claims not due. The original affidavit for attachment is not in the record, and it is not reproduced by copy. The record discloses that it has been lost or mislaid. The entries on the docket of the justice of the peace, Glafcke, before whom the proceedings were instituted, state that on July 13, 1893, plaintiff claimed $28.70, due on the promissory note of defendant, made and delivered May 5, 1893, and that she filed her affidavit for attachment on certain grounds, which are set forth. It does not appear that the affidavit for attachment stated therein when the debt would become due, or that the claim was just. No order separate from the writ was made allowing the attachment or specifying the amount in which it was allowed as required by the statute. Under the chapter of the Code of Civil Procedure referred to, an attachment does not issue as a matter of course or of right. There must be an affirmative order on the part of the court or judge allowing the attachment. Were it not for the language used in describing the grounds for attachment, the action would seem to be one upon a claim already due, and this is contradicted by the record, and counsel concede that the claim was not due. It did not in fact become due until August 8, 1893, one day after judgment was rendered. For this reason the plaintiff was not entitled to bring the action, and the judgment was a nullity. The docket of Justice Carroll also shows that on July 21, 1893, the plaintiff pleaded orally, claiming the amount of the note as then due, but the record of said justice shows that the note was filed, and that the defendant insisted that the note was not due at said date. The offer to pay the plaintiff the amount of the note made on the day the judgment was rendered was refused by the plaintiff, and was returned by the justice to the attorney for the defendant. This does not operate as a waiver of the action of the justice prematurely rendering the judgment. The plea of tender was not made, and the docket entries state that the defendant interposed no answer or defense, and the tender was probably made in order to make a plea of tender at some future time, or to avoid future costs. The defendant persistently objected, as the record discloses, to the entry of any judgment at all, on the ground that the case was not properly brought, and that the court had no authority to render the judgment, and there was no indication of any intention to concede anything on her part, as the record clearly shows. 2. The evidence taken on the motion to dissolve the attachment does not at all support the finding that the defendant was about to become a nonresident of the state,-the only point apparently at issue on the herring upon the traverse of the original affidavit. The finding is not only against the weight of evidence in that respect, but is wholly unsupported by any evidence, and cannot stand. The motion to dissolve the attachment alleged as one ground that the debt was not due, and this motion preceded, as it should, the judgment. The attachment does not appear to be based upon initial papers, or upon a sufficient affidavit, and allowance of the attachment in any amount was error, even conceding that the justice had jurisdiction of an action founded upon a debt not due. It is the duty of those pursuing an extraordinary remedy, such as attachment, to comply with the statute; and in this case there has been neither an exact nor a substantial compliance with the preliminaries required in such actions. Further than this, the motion to dissolve should have been granted for the reason that there was no evidence supporting the grounds alleged for the attachment. Under no possible phase of the case can the judgment and attachment stand. The judgment of the district court dissolving the attachment and reversing and setting aside the judgment of the justice of the peace must be affirmed. CONAWAY and POTTER, JJ., concur. (5 Wyo. 227) STATE ex rel. BANK OF CHADRON v. DISTRICT COURT OF WESTON COUNTY. (Supreme Court of Wyoming. March 19, 1895.) PROHIBITION, WRIT OF-WHEN GRANTED. 1. Before writ of prohibition will be granted to a court, it must have determined adversely to petitioner a motion or suggestion, based on its lack of jurisdiction. 2. Where a court has jurisdiction to vacate a judgment in a proper proceeding, a writ of prohibition will not be granted against its entertainment of a petition for vacation, either on the ground that the petition should be filed as a separate proceeding rather than in the original ac tion; or that the question of the fraud, on which the petition is founded, is res judicata; or that service in such proceeding cannot be had by publication, as such matters should first be passed on in the proceeding by the lower court, and then reviewed on writ of error, which furnishes an adequate remedy. Petition by the Bank of Chadron for writ of prohibition to the district court of Weston county. Writ denied. Allen G. Fisher, for petitioner. E. E. Lonabaugh and Baird & Churchill, for respondent. POTTER, J. The relator, the Bank of Chadron, a corporation organized and existing under the laws of the state of Nebraska, brought its action in the district court of Weston county against one Martin C. Anderson, upon judgment obtained against said Anderson in the county court of Dawes county, Neb., and at the April, 1894, term of the district court of Weston county a personal judgment was rendered against said Anderson; and at the same time an order was entered requiring one John Gunther, a garnishee, to pay the amount of his indebtedness to said Anderson, not exceeding the amount of such judgment, into court, to be held by the clerk thereof until the further order of the court. After the term at which the judgment was rendered, and within one year, and before the second term of said court after the rendition of said judgment, the said Anderson filed his petition in said court for the vacation of said judgment. The petition was filed in the action in which the judgment was rendered, using the title of the original action, in which petition it was prayed, among other things, that the said Bank of Chadron be made defendant to said petition and be summoned therein. Upon the presentation of this petition to the district judge, an order was made by him requiring that notice of the filing of said petition be given to the plaintiff (Bank of Chadron) by delivering a certified copy of such order to the attorney of record of said plaintiff, and that the plaintiff be required to plead to said petition on or before the 15th day of February, A. D. 1895. An affidavit was thereafter filed in said district court as a foundation for service upon the Bank of Chadron by publication; the affidavit for service by publication being verified on the 25th day of January, A. D. 1895, and a notice for the purpose of obtaining service by publication was published in a newspaper in said Weston county, the first publication being made on the 8th day of February, A. D. 1895. At the time that the petition to vacate the judgment was presented to the district judge he made a further order, requiring and directing the clerk of said court to hold any and all moneys that may come into his hands or be paid into his court on said judgment, either by John Gunther or any other person, until the further order of said court or the judge thereof. On the 1st day of February the relator filed in this court his suggestion or petition for writ of prohibition, setting forth substantially the foregoing facts, excepting the proceedings taken for the purpose of obtaining service by publication, which proceedings were unknown to the relator at the time of the filing his petition herein. The petition of the relator further alleged that, immediately upon being informed of the entry of the said orders by the judge of said court, he made application in writing to the judge of said court, suggesting unto him the lack of jurisdiction to make such orders in the premises, and directing his attention to the fact that he and his court were wholly without jurisdiction, unless the petition be filed in form as in other actions, and summons be directed to issue therein, which said suggestion of the lack of jurisdiction was considered by the said judge in chambers, and was denied and overruled. The answer filed herein denies the overruling of the motion or suggestion attacking the jurisdiction of the court, and alleges that hearing and ruling thereon had been postponed until the next term of the said court. The reply, in this respect, attempts to raise an issue of fact, and sets forth a letter written by the judge of the district court to the attorney for the relator, referring to the petition to vacate the judgment, and inferentially to the motion or suggestion by the relator, in which letter the following language was used by the judge: "Your application to vacate that order is accordingly overruled. If the matter is in shape, it will come up in March term, at Newcastle." The "order" referred to is evidently that directing the clerk to hold all moneys until the further order of the court, and it is the application to vacate that order which is overruled. The answer disclaims any jurisdiction by reason of service of notice upon the attorney of record, and any intention to act under that service or the order directing the same. We would be inclined to confine a consideration of the question of fact thus raised to the disclosures of the record, rather than extrinsic matters not shown thereby; but so far as we are advised by all the facts before us, including the letter from the judge, it appears that any motion or suggestion of lack of jurisdiction which may be pending in the lower court remains therein undetermined. Many courts hold such a determination a prerequisite to the allowance of the writ,-indeed, this may be said to be the general rule, and, were there no other reason, this would be a sufficient one in this case for the denial of the writ as prayed for. The application for the writ of prohibition is presented and based upon the theory that the proceedings for the vacation of the judgment are not in dering judgment; and no appeal or writ of error or other remedy is at all available, or, if so, is not adequate to afford the redress to which the injured party is entitled. Spel. Extr. Rel. § 1725; High, Extr. Rem. 767–772; Ex parte Green, 29 Ala. 52; Ex parte Peterson, 33 Ala. 74; Leonard v. Bartels, 4 Colo. 95; State v. Municipal Court of St. Paul, 26 Minn. 162, 2 N. W. 166. The doctrine is laid down that, if the inferior court has jurisdiction of the subject-matter in controversy, a mistaken exercise of that jurisdiction, or of its acknowledged powers, will not justify a resort to the extraordinary remedy by prohibition. High, Extr. Rem. § 767; Ex parte Green, 29 Ala. 52; Leonard v. Bartels, 4 Colo. 95; State v. Municipal Court of St. Paul, 26 Minn. 162, 2 N. W. 166. And that an error or mistake in practice affords no foundation for the writ, unless, indeed, it involves the doing of something which is contrary to the laws of the land. People v. Nichols, 58 How. Pr. 205. We are not prepared to say, and it is not necessary to go that far, that where there is jurisdiction of the subject-matter no case could arise where jurisdiction of the person was not legally obtained which would justify this remedy; but it would require a very flagrant departure from established methods, with no other available or adequate legal means of redress, to require the interference in such case by prohibition. conformity with the statutory requirements, | exceeds it in some incidental matter, or in renand that for such reason the district court is without jurisdiction to act therein. Such proceedings are governed by sections 2701 and 2705 of the Revised Statutes of Wyoming. By the provisions of section 2701, the district court is authorized to vacate or modify its own judgment or order after the term at which the same was made, for various reasons or causes specifically referred to therein. Among the causes so mentioned is "fraud practiced by the successful party in obtaining a judgment or order." The ground for vacating the judgment appears to be fraud of the successful party and his attorneys in procuring the same. Section 2705 is as follows: "The proceedings to vacate the judgment or order on the grounds specified in subdivisions four, five, six, seven, eight, nine and ten of section twenty-seven hundred and one, shall be by petition, verified by affidavit setting forth the judgment or order, the grounds to vacate or modify it, and if the party applying was defendant, the defense to the action, and on such petition a summons shall issue and be served as in the commencement of an action." It seems to be conceded that the ground alleged for the vacation of the present judgment is included in one or more of the subdivisions of section 2701, mentioned in section 2705, above quoted. It is contended on behalf of the relator that the proceedings for the vacation of the present judgment, upon the grounds laid in the petition as filed, must be by a petition separately filed as an independent action, upon which summons must issue, rather than by petition therefor filed in the original action, and that the failure to prosecute the vacation proceedings in such manner does not invest the court with any jurisdiction to take any action therein. The reply of the relator also complains of the insufficiency of the affidavit and notice for the purpose of obtaining constructive service upon the Bank of Chadron. Although we are of opinion that the better practice, under section 2705, is the filing of a petition as a separate proceeding, yet we are not prepared at this time to say that such petition cannot be filed in the original action, and we expressly refrain from deciding that question, as this application must be disposed of upon other grounds, which to our mind are entirely conclusive. The writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been vested by law. It is an extraordinary writ, because it only issues when the party seeking it is without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal. High, Extr. Rem. 762; Spel. Extr. Rel. § 1716. It is only granted to prevent action, and not to undo that which has already been done. In general, it -only lies when the court either has no jurisdiction of the subject-matter, or, having that, In the first place, the inquiry arises, will there be any other available or adequate remedy at law open to the relator if his objections to the proceedings complained of are well founded? This must be answered in the affirmative. That such other remedy is not so speedy, matters not. It is certainly more orderly, and more consistent with the underlying principles governing the administration of justice through the medium of our courts. If the contention of counsel for relator is correct, in that the court is not proceeding regularly under the statute in the particulars complained of, any erroneous action or decision of the court in those matters can be reviewed here on error. Rev. St. Wyo. 1887, § 3126; Hettrick v. Wilson, 12 Ohio St. 136; Myres v. Myres, 6 Ohio St. 221. This remedy being available and adequate, we perceive no injustice in confining the relator thereto. The writ of prohibition is not a writ of right, but is in the sound discretion of the court issuing it; and, in general, it is a good reason for denying the writ that the complaining party has a complete remedy in some other or more ordinary form. As was said by the court in State v. Municipal Court of St. Paul, supra: "When the cause of action is within the jurisdiction of the court, and in the course of the action any matter arises or is presented to the court which requires it to decide upon its jurisdiction, an error in such decision ought to be corrected upon review; and where, in such case, an adequate mode of review was open to such party, the writ of prohibition ought not to issue." And again: "It is much better for the orderly administration of justice that such case should first come through the ordinary mode of trial and decision in the court below, and that any errors committed by it, whether touching its jurisdiction or not, shall be brought here for review and correction in the ordinary way." Beyond that, however, it is entirely clear that the district court has jurisdiction of the subject-matter of the proceeding complained of. It is expressly granted authority by statute to vacate or modify its judgment after the term at which it is rendered, in a proper proceeding to be brought for that purpose; and the filing of the petition in the original action, instead of commencing a separate and independent proceeding thereby, and denominating the petitioner as plaintiff and his adversary the defendant, even should the latter be the method authorized or required by the statute, is not a sufficient cause for a writ from this court in the first instance, preventing the district court from taking any cognizance of or action in the matter. This is a question of practice, and the trial court, when the question arises, must determine whether the proceedings are proper and sufficient to authorize a hearing upon the matters alleged for vacating the judgment, such decision being subject to review on error in this court, but any defect in such practice does not constitute such jurisdictional error as authorizes the writ of prohibition. It is urged that the affidavit and notice for constructive service are insufficient in form and substance. This objection, if submitted to the trial court, must be passed upon by it the same as any other question arising in the progress of the case, and, if erroneously decided, its ruling can be reviewed on error. Counsel for relator also contends that the fraud alleged in the petition for vacation of the judgment is not such as would justify any interference with the judgment, as the same has been already litigated in an action in a Nebraska court, and is res adjudicata. This is clearly a mere matter of defense, and furnishes no basis for an application for prohibition. We cannot consider the merits of the proceeding for vacation of the judgment. It is further insisted, and rather strenuously so, that service by publication cannot be had upon the Bank of Chadron in the kind of proceeding which is being prosecuted in the lower court. It has been decided in Ohio, from which state our Code is taken, that service in such a proceeding may be had by publication. 3 West. Law Month. 195. This, however, is also a matter to be passed upon by the court in which the proceedings are pending, and action thereon should not be prevented by prohibition. What has already been said applies with equal force to this matter of objection, even if the point as to service is well taken. In the case of Mines d'Or de | Quartz Mountain Societe Anonyme v. Superior Court of Fresno County (Cal.) 27 Pac. 532, the supreme court of California, in considering an application for writ of prohibition, which was made upon the ground that the action in the lower court was in personam, and not one in which summons by publication is authorized, but in which the court had made an order directing service by publication upon the defendants, who were nonresidents of the state of California, say: "We do not deem it necessary or proper to determine at this time whether an action now pending against petitioners in the superior court is one in which the summons can be legally served by publication. That court has jurisdiction of the subject-matter of the action, and whether it has jurisdiction over the persons of petitioners is a question which it must determine for itself before entering Judgment in the action, and which it has the same authority to pass upon as any other question of law or fact which may arise during its progress; and, if in the decision error shall be committed to the prejudice of petitioners, the law offers them a plain and adequate remedy by an appeal from any judgment which may be entered against them." The court having jurisdiction to vacate the judgment in a proper proceeding brought for that purpose, the action of the court in proceeding to hear the questions arising upon the petition filed would be, at most, a mere erroneous exercise of a jurisdiction with which the court is invested, and not the assumption of a jurisdiction to which the court has no legal claim. For the reasons stated, we are of the opinion that the writ of prohibition in a case of this kind ought not to be granted by this court. If any other rule should be adopted, this court would be inviting the presentation to it in advance of final judgment in the lower courts of all cases in which objection should be made to the method of obtaining jurisdiction over the persons of parties litigant, to the sufficiency of affida vits for constructive service, or to the summons, which to our mind would, at least, generally be entirely improper. Such matters should rather be determined by the lower court, in ordinary course, and, if error has been committed, such error should be reviewed by this court, if at all, upon proceedings in error. The writ of prohibition is de nied. GROESBECK, C. J., and CONAWAY, J., concur. (5 Wyo. 245) PEOPLE ex rel. SCHOOL DIST. NO. 3 IN LARAMIE COUNTY v. DOLAN. (Supreme Court of Wyoming. March 19, 1895.) RETIREMENT OF OFFICER-FAILURE TO PAY OVER FUNDS-SUIT FOR PENALTY-CONSTRUOTION OF STATUTE. Section 3977, Rev. St. 1887, providing that "any officer or person collecting or receiv ing any fines, forfeitures or other money, and |