Crosby v. Probate Court

EMERSON, J.: On the third day of November, 1880, the appellant applied to the third district court for a writ of certiooxu-i to .the probate court for the county of Salt Lake, upon an affidavit, stating in substance that he was married to one Sarah Kay, in February, 1862; that on the sixth day of May, 1873, his wife, then Sarah Kay Crosby, petitioned the probate court of Salt Lake county for a decree of divorce from him; that on the ninth day of May, three days thereafter, the said probate court assumed to grant said divorce; that the same was done without notice, either actual or constructive, to him, and that it was done without his knowledge or consent; that the grounds set up in the petition for divorce were false and fraudulent. The writ was granted upon this application, and without notice to the respondents. ■ Upon the return day of the writ the respondents appeared and moved to quash the same upon the grounds — 1. That the remedy is barred by lapse of time, and no sufficient reason appears for the plaintiff’s right, and the contrary appears; 2. On the merits of the writ the applicant has no right to in [53] voice tbe exercise of tbe discretion of tbe court in bis bebalf, and tbe writ is discretionary; 3. Tbe support of tbe writ would do a great and irreparable injury to some of tbe defendants, and would not benefit tbe plaintiff; 4 The plaintiff has an adequate and complete remedy by ordinary proceedings at law. Several affidavits were filed with tbe motion and in support thereof, to the reading of which, upon tbe bearing, tbe appellant objected, upon tbe ground that they were -irrelevant and immaterial. Tbe objection was overruled and exception taken. Tbe motion to quash tbe writ was granted, and this appeal is from tbe order of dismissal. The appellant files several specifications of error, only two of which will be noticed, as they will dispose of the whole case. The first is, that tbe court erred in allowing tbe affidavits filed with tbe motion to be read at the hearing thereof. It is a well-settled and established doctrine that the writ of certiorari is not awarded as a matter of right, but tbe granting or refusing it lies in the sound discretion of the court. Neither does it follow that because a party has no other remedy than certiorari that he can necessarily have that remedy, considerations of public interest may outweigh the importance of correcting the error complained of: People v. Mayor of New York, 2 Hill (N. Y.), 9. A motion to quash the writ, like the granting of it, is addressed to the sound discretion of the court, and the admission of proofs, appealing to that discretion, were proper, as it could be best exercised after hearing the facts. The settled practice is, that this motion may be made after the return of the writ, and if the court is then satisfied that it was improvidently issued, or that justice and equity, or a regard to considerations of public policy and public convenience, require such a decision in respect to it, the writ will be dismissed, without passing upon the merits of the particular questions raised or designed to be raised by it for review. There was no error in allowing the affidavits to be read on the hearing of the motion. The record discloses the fact that without them great injury and wrong might have been done [54] some of the parties. Without tbem, the discretion of the court could not have been wisely or prudently exercised. The second assignment of error, and the only other one we shall consider, is, that the court erred in granting and sustaining said motion to quash said writ of certiorari. The record discloses the fact that in 1873, and soon after the proceedings in the probate court, the appellant was informed of what had taken place. No steps were taken by him in reference thereto until the filing of this petition, over seven years thereafter. Courts generally limit the time within which this writ will be issued, by analogy, to that within which appeals can be taken, or writs of error will lie. It must be an extraordinary state of facts and very peculiar circumstances which would justify its issuance after that time. No sufficient excuse is given for the great delay in this case. The judgment of the court below is affirmed, with costs. HuNTER, C. J., and Twiss, J., concurred.