State ex rel. Markey v. Skinner

The opinion of the Court was delivered by Bermudez, C. J. This is an application for a certiorari for the purpose of ascertaining the validity of certain judicial proceedings in the First City Court. The relator complains that in the absence of any valid judgment against him, the defendant has assumed on an ex parte showing to issue . execution against him, and that the constable of his court has proceeded to levy the same under garnishment process, by seizure in the hands of a third person indebted to him or supposed to be so ; and that by judgment of said court against such person, payment of the money thus arrested was ordered to be made by the garnishee into court. He further avers that he has applied by motion for relief in the premises, and that the city judge, after granting a restraining order, has dissolved it on the ground that he had mistaken his remedy. - The relator prays for a certiorari. The preliminary orders asked were issued for temporary protection. The defendant has made a satisfactory return. An examination of the proceedings brought up, of the pleadings and of the briefs filed in this Court, fails to satisfy us that the proceeding complained of is invalid. The city judge may have erred, but with the intrinsic correctness- of his judgment in the proceeding we have nothing to do. The question presented to our consideration simply is : Is the proceeding legal and valid in its form ? When we say the proceeding, we mean the motion and the restraining order which were dismissed for the reason stated. We do not, and cannot, go behind the motion or the judgment upon it. The city judge did not refuse absolutely to inquire into the validity or invalidity of the judgment assailed ; he has not said that it was legal and binding ; he has not at all passed upon the merits of the case presented by the motion. He merely decided that the relator had mistaken his remedy. He had a judicial discretion to exercise in the matter, and has done so. In the case of Piernas vs. Millet, 10 An, 286, the proceeding by motion, without affidavit and bond, to arrest an execution in certain rare cases, was expressly sanctioned, the Court going so far as to say that it could even,proprio motu, thus arrest unlawful proceedings of the character referred to. Whether the case presented on such motion by the relator to the city court was one covered by that ruling, was a question [380] which that court had legal authority to determine, and one the solution of which this Court cannot review, devoid as it is of any appellate jurisdiction over said court. Const. 81, 90. We find that the forms of law in the matter presented and considered were observed, and that the proceedings complained of are valid on their face. It is, therefore, ordered that the restraining order herein made be set aside, and that the application for a certiorari and prohibition be-refused at relator’s cost.