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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 before the maturity of the debt. Lyons v. 5, 1893, and payable three months after date. Insley, 32 Kan. 174, 4 Pac. 150. In Ohio, The suit was brought in attachment under under a similar provision, it was held that, the provisions of the Code of Civil Procedure there being no special provision for a dispermitting an action to be brought on a charge of an attachment by proceedings upclaim before it is due, upon an affidavit for on a traverse of the original affidavit in atattachment alleging one or more of the stat- tachment before justices, the provisions of utory grounds, and upon the allowance of the Civil Code permitting a hearing upon the attachment by the court or judge, spec- the affidavit for attachment and the affidavit ifying the amount for which the attachment traversing the grounds of attachment "pis allowed, not exceeding a sum sufficient to plied to proceedings before the justice. Ban. satisfy the plaintiff's claim and the probable croft v. Talbott, 29 Ohio St. 538. So it was costs of the action. Rev. St. $8 2912–2918. held in Nebraska that the provisions of the The cause was taken by change of venue to Civil Code of Procedure for the revival of W. P. Carroll, another justice of the peace judgments and actions applied to actions befor the same precinct, and the attachment fore and judgments rendered by justices of was sustained upon a hearing on the traverse the peace, where the justice's act was silent of the grounds of the affidavit for attach- in that respect, and the court says: “There ment. Judgment was finally rendered for are many other provisions of the Code apthe plaintiff in error August 7, 1893, one plicable to actions before justices of the day before the note became due, allowing peace, to which it is unnecessary to refer. the statutory period of grace.

The cause It is the duty of the court so to construe the was taken to the district court for Laramie provisions of the Code in their nature apcounty by proceedings in error, where the plicable to actions in justices' courts as to judgment of the justice of the peace was enable such justices to enforce and protect reversed and set aside, and the attachment the rights of parties before them and to adwas dissolved, and the plaintiff in error seeks minister justice.” Miller v. Curry, 17 Neb. to reverse this judgment of the district court. 322, 22 N. W. 559. The Kansas constitution

The proceedings are not authorized by the provides that the jurisdiction of the justices Justices' Code, as no provision appears there- shall be such as is prescribed by law. Our in for commencing an action before a debt constitution conferring jurisdiction upon jusis due, elther by attachment or otherwise; tices of the peace employs different language but it is contended that the provisions of the than that used in defining the jurisdiction of Code of Civil Procedure are applicable, ir the justices as contained in the Justices' such case, in courts of justices of the peace, Code (Rev. St. $$ 3415–3420), where the juris., by force of the statute. A section of the diction is minutely conferred or expressly proJustices' Code found in section 3120 of the hibited in certain actions. The Justices' Revised Statutes reads as follows: "Every Code was enacted long before the admission justice of the peace in this territory (state) of the state into the Union, and specified in after qualifying, is hereby authorized to hold what cases such an officer shall exercise juhis court for the trial of all actions of which risdiction and in what not. The constitujurisdiction is given him by law, and to hear, tional provisions are broader. “The justices try and determine the same according to of the peace herein provided for shall have law; and for that purpose, when no special concurrent jurisdiction with the district court provision is otherwise made by law, such in all civil actions where the amount in concourt shall be vested with all necessary

troversy, exclusive of costs, does not exceed powers which are possessed by courts of rec- two hundred dollars, and they shall have ord in this territory (state); and all laws of such jurisdiction to hear and determine cases a general nature are to apply to such jus- of misdemeanor as may be provided by law, tice's court so far as the same may be ap- but in no case shall justices of the peace have plicable, and not inconsistent with the provi- jurisdiction when the boundaries of or title sions of this chapter.” It was held in Kan- to real estate shall come in question.” Const. sas, where the statute declares that the pro- Wyo. art. 5, $ 22. But it is unnecessary to visions of the Code of Civil Procedure which decide whether this grant of jurisdiction conare in their nature applicable to the jurisdic- fers upon justices of the peace the power tion and proceedings before justices of the possessed by the district courts to grant an peace, and in respect to which no special attachment in a suit arising on contract beprovision is made by statute, are applicable fore maturity under the provisions of the to proceedings before justices of the peace, Code of Civil Procedure. Indeed, it would that a provision of the Code of Procedure haruiy be proper in this case to do so, as the for civil cases, permitting an action to be attention of counsel has not been called to brought by attachment before the maturity the effect of this constitutional provision, of the debt, did not apply to justices of the and our attention was not directed to the peace, on the ground that the legislature had question by counsel. Assuming that the covered the whole ground of attachment and main contention of counsel for the plaingarnishment before justices by special provi- tiff in error is correct, that the justice of the sions of the Justices' Code, wherein no such peace before whom the action was begun, and the like officer before whom the cause the note was not due at said date. The offer to was tried, were clothed with the jurisdiction pay the plaintiff the amount of the note made possessed by the district courts in such cases, on the day the judgment was rendered was the judgment of the justice of the peace must refused by the plaintiff, and was returned by be reversed, as it was rendered on the 7th the justice to the attorney for the defendant. day of August, 1893, one day before the debt This does not operate as a waiver of the acsued upon was due, because our statute re- tion of the justice prematurely rendering the lating to negotiable instruments follows the judgment. The plea of tender was not made, rule of the law merchant, and allows three and the docket entries state that the defenddays of grace on such instruments. Sess. ant interposed no answer or defense, and Laws 1888, c. 70, $ 62. The provisions of the the tender was probably made in order to Code under which this action must be main- make a plea of tender at some future time, tained, if at all, are that “the plaintiff in or to avoid future costs. The defendant persuch action (in attachment before maturity | sistently objected, as the record discloses, of the debt] shall not have judgment on his to the entry of any judgment at all, on claim before it becomes due." Rev. St. S the ground that the case was not prop2917. So, even if the provisions of the Code erly brought, and that the court had no invoked do apply to proceedings in the courts authority to render the judgment, and there of justices of the peace, the justice was was no indication of any intention to conwithout jurisdiction to determine the cause cede anything on her part, as the record and enter judgment before the note was clearly shows. due; and, if such provisions are not applica- 2. The evidence taken on the motion to disble to the case at bar, it is certain that the solve the attachment does not at all support magistrate had no jurisdiction whatever. the finding that the defendant was about to

There is nothing in the record to indicate become a nonresident of the state,-the only that the suit was commenced upon a debt point apparently at issue on the he ring upconceded to be not due, except the statement on the traverse of the original affidavit. The of the grounds of the attachment, which finding is not only against the weight of eviare found only in the language employed in

dence in that respect, bu is wholly unsupthe chapter of the Code authorizing suits by ported by any evidence, and cannot stand. attachment upon claims not due. The orig- The motion to dissolve the attachment alinal affidavit for attachment is not in the rec

leged as one ground that the debt was ord, and it is not reproduced by copy. The

not due, and this motion preceded, as it record discloses that it has been lost or mis- should, the judgment. The attachment does laid. The entries on the docket of the jus

not appear to be based upon initial papers, tice of the peace, Glafcke, before whom the or upon a sufficient affidavit, and allowance proceedings were instituted, state that on of the attachment in any amount was error, July 13, 1893, plaintiff claimed $28.70, due even conceding that the justice had jurison the promissory note of defendant, made diction of an action founded upon a debt and delivered May 5, 1893, and that she filed not due. It is the duty of those pursuing her affidavit for attachment certain an extraordinary remedy, such as attachgrounds, which are set forth. It does not ap- ment, to comply with the statute; and in pear that the affidavit for attachment stated this case there bas been neither an exact nor therein when the debt would become due, or a substantial compliance with the preliminathat the claim was just. No order separate ries required in such actions. Further than from the writ was made allowing the attach- this, the motion to dissolve should have been ment or specifying the amount in which it granted for the reason that there was no eviwas allowed as required by the statute. Un- dence supporting the grounds alleged for the der the chapter of the Code of Civil Proce- attachinent. Under no possible phase of the dure referred to, an attachment does not is. case can the judgment and attachment stand. sue as a matter of course or of right. There The jud ent of the district court dissolvmust be an affirmative order on the part of ing the attachment and reversing and setting the court or judge allowing the attachment. aside the judgment of the justice of the Were it not for the language used in describ- peace must be affirmed. ing the grounds for attachment, the action would seem to be one upon a claim already

CONAWAY and POTTER, JJ., concur. 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

(5 Wyo. 227) August 8, 1893, one day after judgment was STATE ex rel. BANK OF CHADRON V. rendered. For this reason the plaintiff was

DISTRICT COURT OF WESnot entitled to bring the action, and the

TON COUNTY. judgment was a nullity. The docket of Jus- (Supreme Court of Wyoming. March 19, 1895.) tice Carroll also shows that on July 21, 1893, PROHIBITION, WRIT OF—WIEN GRANTED. the plaintiff pleaded orally, claiming the 1. Before writ of prohibition will be granted amount of the note as then due, but the rec

to a court, it must have determined adversely

to petitioner a motion or suggestion, based on its ord of said justice shows that the note was

lack of jurisdiction. filed, and that the defendant insisted that 2. Where a court has jurisdiction to vacate

on

a judgment in a proper proceeding, a writ of pro- may come into his hands or be paid into his hibition will not be granted against its enter

court on said judgment, either by John Guntainment of a petition for vacation, either on the ground that the petition should be filed as a sep

ther or any other person, until the further arate proceeding rather than in the original ac

order of said court or the judge thereof. tion; or that the question of the fraud, on which On the 1st day of February the relator filed the petition is founded, is res judicata; or that

in this court his suggestion or petition for service in such proceeding cannot be had by publication,-as such matters should first be passed writ of prohibition, setting forth substanon in the proceeding by the lower court, and then tially the foregoing facts, excepting the proreviewed on writ of error, which furnishes an ceedings taken for the purpose of obtaining adequate remedy.

service by publication, which proceedings Petition by the Bank of Chadron for writ were unknown to the relator at the time of of prohibition to the district court of Wes

the filing his petition herein. The petition of ton county. Writ denied.

the relator further alleged that, immediately Allen G. Fisher, for petitioner. E. E. Lona- upon being informed of the entry of the baugh and Baird & Churchill, for respond- said orders by the judge of said court, be ent.

made application in writing to the judge of

said court, suggesting unto him the lack of POTTER, J. The relator, the Bank of jurisdiction to make such orders in the premChadron, a corporation organized and exist- ises, and directing his attention to the fact ing under the laws of the state of Nebraska, that he and his court were wholly without brought its action in the district court of jurisdiction, unless the petition be filed in Weston county against one Martin C. Ander- form as in other actions, and summons be son, upon judgment obtained against said directed to issue therein, which said suggesAnderson in the county court of Dawes coun. tion of the lack of jurisdiction was considerty, Neb., and at the April, 1894, term of the ed by the said judge in chambers, and was district court of Weston county a personal denied and overruled. The answer filed herejudgment was rendered against said Ander- | in denies the overruling of the motion or son; and at the same time an order was en- suggestion attacking the jurisdiction of the tered requiring one John Gunther, a gar- court, and alleges that hearing and ruling nishee, to pay the amount of his indebted- thereon had been postponed until the next ness to said Anderson, not exceeding the term of the said court. The reply, in this reamount of such judgment, into court, to be spect, attempts to raise an issue of fact, and held by the clerk thereof until the further sets forth a letter written by the judge of order of the court. After the term at which the district court to the attorney for the rethe judgment was rendered, and within one lator, referring to the petition to vacate the year, and before the second term of said judgment, and inferentially to the motion or court after the rendition of said judgment, suggestion by the relator, in which letter the the said Anderson filed his petition in said following language was used by the judge: court for the vacation of said judgment. “Your application to vacate that order is The petition was filed in the action in which accordingly overruled. If the matter is in the judgment was rendered, using the title shape, it will come up in March term, at of the original action, in which petition it Newcastle.” The “order" referred to is eviwas prayed, among other things, that the dently that directing the clerk to hold all said Bank of Chadron be made defendant to moneys until the further order of the court, said petition and be summoned therein. Up- and it is the application to vacate that order on the presentation of this petition to the which is overruled. The answer disclaims district judge, an order was made by him re- any jurisdiction by reason of service of noquiring that notice of the filing of said pe- tice upon the attorney of record, and any tition be given to the plaintiff (Bank of intention to act under that service or the Chadron) by delivering a certified copy of order directing the same. such order to the attorney of record of said We would be inclined to confine a considerplaintiff, and that the plaintiff be required ation of the question of fact thus raised to to plead to said petition on or before the the disclosures of the record, rather than ex15th day of February, A. D. 1895. An affi- trinsic matters not shown thereby; but so far davit was thereafter filed in said district as we are advised by all the facts before us, court as a foundation for service upon the including the letter from the judge, it appears Bank of Chadron by publication; the afli- that any motion or suggestion of lack of judavit for service by publication being veri- risdiction which may be pending in the lowfied on the 25th day of January, A. D. 1895, court remains therein undetermined. and a notice for the purpose of obtaining Many courts hold such a determination a preservice by publication was published in a requisite to the allowance of the writ,-innewspaper in said Weston county, the first deed, this may be said to be the general rule, publication being made on the 8th day of -and, were there no other reason, this would February, A. D. 1895. At the time that the be a sufficient one in this case for the denial petition to vacate the judgment was present of the writ as prayed for. The application ed to the district judge he made a further for the writ of prohibition is presented and order, requiring and directing the clerk of based upon the theory that the proceedings said court to hold any and all moneys that for the vacation of the judgment are not in

er

conformity with the statutory requirements, exceeds it in some incidental matter, or in renand that for such reason the district court is dering judgment; and no appeal or writ of without jurisdiction to act therein. Such pro- error or other remedy is at all available, or, ceedings are governed by sections 2701 and if so, is not adequate to afford the redress to 2705 of the Revised Statutes of Wyoming. which the injured party is entitled. Spel. By the provisions of section 2701, the district Extr. Rel. § 1725; High, Extr. Rem. 767-772; court is authorized to vacate or modify its Ex parte Green, 29 Ala. 52; Ex parte Peterown judgment or order after the term at son, 33 Ala. 74; Leonard v. Bartels, 4 Colo. which the same was made, for various rea- 95; State v. Municipal Court of St. Paul, 26 sons or causes specifically referred to therein. Minn. 162, 2 N. W. 166. The doctrine is laid Among the causes so mentioned is "fraud | down that, if the inferior court has jurisdicpracticed by the successful party in obtaining tion of the subject-matter in controversy, a a judgment or order.” The ground for vacat- mistaken exercise of that jurisdiction, or of ing the judgment appears to be fraud of the its acknowledged powers, will not justify a successful party and his attorneys in procur- resort to the extraordinary remedy by prohiing the same. Section 2705 is as follows: bition. High, Extr. Rem. $ 767; Ex parte "The proceedings to vacate the judgment or Green, 29 Ala. 52; Leonard v. Bartels, 4 Colo. order on the grounds specified in subdivisions 95; State v. Municipal Court of St. Paul, 26 four, five, six, seven, eight, nine and ten of Minn. 162, 2 N. W. 166. And that an error section twenty-seven hundred and one, shall or mistake in practice affords no foundation be by petition, verified by affidavit setting for the writ, unless, indeed, it involves the forth the judgment or order, the grounds to doing of something which is contrary to the vacate or modify it, and if the party applying laws of the land. People v. Nichols, 58 How. was defendant, the defense to the action, and Pr. 205. We are not prepared to say, and it on such petition a summons shall issue and is not necessary to go that far, that where be served as in the commencement of an ac- there is jurisdiction of the subject-matter no tion." It seems to be conceded that the case could arise where jurisdiction of the perground alleged for the vacation of the pres- son was not legally obtained which would ent judgment is included in one or more of justify this remedy; but it would require a the subdivisions of section 2701, mentioned in very flagrant departure from established section 2705, above quoted. It is contended methods, with no other available or adequate on behalf of the relator that the proceedings legal means of redress, to require the interfor the vacation of the present judgment, up- ference in such case by prohibition. on the grounds laid in the petition as filed, In the first place, the inquiry arises, will must be by a petition separately filed as an there be any other available or adequate independent action, upon whichi summons remedy at law open to the relator if his obmust issue, rather than by petition therefor jections to the proceedings complained of are filed in the original action, and that the fail. well founded? This must be answered in ure to prosecute the vacation proceedings in the affirmative. That such other remedy is such manner does not invest the court with not so speedy, matters not. It is certainly any jurisdiction to take any action therein. more orderly, and more consistent with the The reply of the relator also complains of the underlying principles governing the admininsufficiency of the affidavit and notice for istration of justice through the medium of the purpose of obtaining constructive service our courts. If the contention of counsel for upon the Bank of Chadron. Although we are relator is correct, in that the court is not proof opinion that the better practice, under sec- ceeding regularly under the statute in the tion 2705, is the filing of a petition as a sep- particulars complained of, any erroneous acarate proceeding, yet we are not prepared at tion or decision of the court in those matthis time to say that such petition cannot be ters can be reviewed here on error. Rev. filed in the original action, and we expressly St. Wyo. 1887, § 3126; Hettrick v. Wilson, refrain from deciding that question, as this 12 Ohio St. 136; Myres v. Myres, 6 Ohio application must be disposed of upon other St. 221. This remedy being available and grounds, which to our mind are entirely con- adequate, we perceive no injustice in conclusive.

fining the relator thereto. The writ of proThe writ of prohibition is that process by hibition is not a writ of right, but is in the which a superior court prevents an inferior sound discretion of the court issuing it; and, court or tribunal from usurping or exercising in general, it is a good reason for denying a jurisdiction with which it has not been the writ that the complaining party has a vested by law. It is an extraordinary writ, complete remedy in some other or more orbecause it only issues when the party seeking dinary form. As was said by the court in it is without other adequate means of redress State v. Municipal Court of St. Paul, supra: for the wrong about to be inflicted by the act "When the cause of action is within the juof the inferior tribunal. High, Extr. Rem. risdiction of the court, and in the course 762; Spel. Extr. Rel. $ 1716. It is only grant- of the action any matter arises or is preed to prevent action, and not to undo that sented to the court which requires it to dewhich has already been done. In general, it cide upon its jurisdiction, an error in such only lies when the court either has no juris- decision ought to be corrected upon review; diction of the subject-matter, or, having that, and where, in such case, an adequate mode of review was open to such party, the writ Quartz Mountain Societe Anonyme v. Supeof prohibition ought not to issue." And rior Court of Fresno County (Cal.) 27 Pac. again: “It is much better for the orderly ad- 532, the supreme court of California, in conministration of justice that such case should sidering an application for writ of prohibi. first come through the ordinary mode of trial tion, which was made upon the ground that and decision in the court below, and that any the action in the lower court was in pererrors committed by it, whether touching its sonam, and not one in which summons by jurisdiction or not, shall be brought here publication is authorized, but in which the for review and correction in the ordinary court had made an order directing service by way." Beyond that, however, it is entirely publication upon the defendants, who were clear that the district court has jurisdiction nonresidents of the state of California, say: of the subject-matter of the proceeding com- "We do not deem it necessary or proper to plained of. It is expressly granted author- determine at this time whether an action ity by statute to vacate or modify its judg. now pending against petitioners in the supe ment after the term at which it is rendered, rior court is one in which the summons can in a proper proceeding to be brought for that be legally served by publication. That court purpose; and the filing of the petition in has jurisdiction of the subject-matter of the the original action, instead of commencing action, and whether it has jurisdiction over a separate and independent proceeding there- the persons of petitioners is a question which by, and denominating the petitioner as plain- It must determine for itself before entering tiff and bis adversary the defendant, even judgment in the action, and which it has the should the latter be the method authorized same authority to pass upon as any other or required by the statute, is not a sufficient question of law or fact which may arise durcause for a writ from this court in the first ing its progress; and, if in the decision er. instance, preventing the district court from ror shall be committed to the prejudice of taking any cognizance of or action in the petitioners, the law offers them a plain and matter. This is a question of practice, and adequate remedy by an appeal from any the trial court, when the question arises, judgment which may be entered against must determine whether the proceedings are them." The court having jurisdiction to Faproper and sufficient to authorize a hearing cate the judgment in a proper proceeding upon the matters alleged for vacating the brought for that purpose, the action of the judgment, such decision being subject to re- court in proceeding to hear the questions view on error in this court, but any defect arising upon the petition filed would be, at in such practice does not constitute such most, a mere erroneous exercise of a jujurisdictional error as authorizes the writ risdiction with which the court is invested, of prohibition. It is urged that the affidavit and not the assumption of a jurisdiction to and notice for constructive service are in- which the court has no legal claim. For sufficient in form and substance. This ob- the reasons stated, we are of the opinion jection, if submitted to the trial court, must that the writ of prohibition in a case of be passed upon by it the same as any other this kind ought not to be granted by this question arising in the progress of the case, court. If any other rule should be adopt and, if erroneously decided, its ruling can ed, this court would be inviting the presen. be reviewed on error. Counsel for relator tation to it in advance of final judgment also contends that the fraud alleged in the in the lower courts of all cases in which ob petition for vacation of the judgment is not jection should be made to the method of such as would justify any interference with obtaining jurisdiction over the persons of the judgment, as the same has been already parties litigant, to the sufficiency of affidalitigated in an action in a Nebraska court, vits for constructive service, or to the sum. and is res adjudicata. This is clearly a mons, which to our mind would; at least, mere matter of defense, and furnishes no

generally be entirely improper. Such matbasis for an application for prohibition. We ters should rather be determined by the low. cannot consider the merits of the proceeding er court, in ordinary course, and, if error has for vacation of the judgment. It is further been committed, such error should be reinsisted, and rather strenuously so, that sery- viewed by this court, if at all, upon proceed. ice by publication cannot be had upon the ings in error. The writ of prohibition is de Bank of Chadron in the kind of proceeding nied. which is being prosecuted in the lower court.

GROESBECK, O. J., and CONAWAY, J., It has been decided in Ohio, from which

concur. state our Code is taken, that service in such a proceeding may be had by publication. 3

(5 Wyo. 245) West. Law Month. 195. This, however, is PEOPLE ex rel. SCHOOL DIST. NO. 3 IN also a matter to be passed upon by the court LARAMIE COUNTY V. DOLAN. in which the proceedings are pending, and (Supreme Court of Wyoming, March 19, 1895.) action thereon should not be prevented by RETIREMENT OF Officer-FAILURE TO PAY OFER prohibition. What has already been said FUNDI-SUIT FOR PENALTY-CONSTRUOapplies with equal force to this matter of ob

TION OF STATUTE, jection, even if the point as to service is

Section 3977, Rev. St. 1887, providing

that “any officer or person collecting or receive well taken. In the case of Mines d'Or de

ing any fpes, forfeitures or other moneys and

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