State ex rel. First National Bank of Laramie v. District Court of Albany County

Corn, Chief Justice. This is a petition for a writ of prohibition — a proceeding originating in this court — and the circumstances of the litigation out of which it arises are sufficiently stated in the case of First National Bank et al. v. Alfred Cook, as Receiver, et al., 76 Pac., 674, recently decided by this court upon proceedings in error. The matter is presented upon a demurrer to the petition, alleging that it fails to state facts sufficient to constitute a cause of action. It is urged, among other things, in support of the demurrer, that it does not appear from the allegations of the petition that the objection that the court was without jurisdiction was presented in any manner to the court below. We think this objection is fatal to the petition, and that the demurrer must be sustained. In State ex rel. v. District Court, 5 Wyo., 227, 39 Pac., 749, the petitioner alleged that he had suggested to the District Judge, in writing, his lack of jurisdiction in the premises, but that such suggestion was overruled. The answer denied that it had been overruled, and averred that' a consideration of such suggestion had been postponed to the next term of that court. In that case this court said: “So far as we are advised by all the facts [551] before us, 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 to be 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.” It cannot, therefore, be said, perhaps, that the precise question has heretofore been decided by this court. But the rule is stated to be that applications for the writ are premature until exception has been taken to the lower court and overruled, and will be refused if this has not been done, for it is invariably presumed that courts will give to parties the relief to which they show themselves entitled. (16 Ency. Pl. & Pr., 1128.) And High says: “The common law rule is believed to be generally applicable, and the writ will not go to a subordinate tribunal in a cause arising out of its jurisdiction until the want of jurisdiction has first been pleaded in the court below, and the plea refused.” (High Ex.. Rem., Sec. 773.) In Brown on Jurisdiction, Section 175, it is said: “Usually a plea to the jurisdiction should be filed before the writ issues, so the court may know the grounds made before the writ will lie.” And Spelling says: “The extraordinary remedy by prohibition is confined at present, as when first employed, only to cases where it appears that the party seeking it has an actual grievance, and has. applied without avail to the inferior tribunal for relief: and an application for a writ of prohibition will be denied when it does not appear that want of jurisdiction was pleaded in the court whose action is sought to be prohibited.” (Spelling Inj. & Extra. Rem., Sec. 1731.) There are some cases to the contrary, but this seems to be the trend of authority upon the subject. And it is in line with the practice in this State, that parties will not ordinarily be heard in this court to allege error until it has been first presented for correction • to the court in which it occurred, [552] by motion for new trial or other proper proceeding. There are doubtless some necessary exceptions to a stringent enforcement of the rule, as where the applicant has had no opportunity'to present the objection in the lower coitrt, and the necessary delay would be highly injurious to his interests, or when the want of jurisdiction is disclosed on the face of the record itself, and it is obvious from the whole proceedings that such an application would be futile. It has been so held in. Missouri, for instance St. Louis R. R. Co. v. Wear, 135 Mo., 230; 36 S. W., 357, 658; 33 L. R. A., 341; State ex rel. v. Hirzel, 137 Mo., 435; 37 S. W., 921; 38 S. W., 961, although in-that state it has also been held that the rule is inflexible that the inferior court must be asked, in some form, to refrain from proceeding for want of jurisdiction before an application for prohibition will be entertained by a court of supervisory authority. (Barnes v. Gottschalk. 3 Mo. App., 115; State ex rel. v. Laughlin, 9 Mo. App., 488.) There is nothing in this case to excuse the failure in that respect, and we must presume that, if the objection to the jurisdiction had been presented to the court below, it would have refrained from the proceedings wherein its jurisdiction was exceeded. (State ex rel. v. Judge, 29 La. Ann., 806.) The demurrer will be sustained. ICnigi-xt, J., and Potter, J., concur.