Walker v. District Court

BAKER, C. J. In this matter there was an appeal taken from the probate court of Pinal County to said district court from a judgment finding the petitioner to be an heir at law of one John D. Walker, deceased. It is claimed that a sufficient bond on appeal was not filed, and therefore said district court acquired no jurisdiction to hear and determine such appeal. The petitioner appeared and moved said district court to dismiss the appeal for want of jurisdiction, and upon such petition being denied, and the appeal being about to be heard, she prays us to issue a writ of prohibition against said court to prevent the hearing of the appeal, for the reason of want of jurisdiction. The question of a want of jurisdiction in the supreme court to issue such a writ by virtue of its original jurisdiction was extensively argued at the hearing, but, inasmuch as the determination of that question is not necessary to the conclusion which we have reached, we do not express any opinion upon that subject. If the power exists in this court to issue the writ, the petitioner, we are convinced, has an adequate remedy by appeal or error from the action of the 'district court; and it is everywhere agreed that in such case the writ will not issue. Any other course, ordinarily, would bring all civil eases where jurisdictional questions are involved to this court by the writ, instead of appeal or error, a course not authorized by our practice. People v. District Court, 11 Colo. 574, 19 Pac. 541. There may be—we do not say there are—cases where the remedy by appeal or error might not be considered adequate, and the writ would issue; but even then we think that the question whether the remedy by appeal or error is adequate should be left, along with the. question ol jurisdiction, to be decided upon the application. 2 Spelling on [252] Extraordinary Relief, par. 1732. We are content -to say the remedy by appeal or error, in this instance, is amply suffi-, cient. The mere fact that to be put to trial and then to the appeal necessitates an expense and some delay is no answer to the conclusion. All litigation is, unhappily, attended with the same results. The writ is denied. Sloan, J., and Hawkins, J., concur. Rouse, J., not sitting.