State ex rel. Gooch v. Robinson

The opinion of the Court was delivered by PochÉj J. Relator complains that an illegal and unwarranted exe [969] cution against Mm has been issued by respondent, under the following circumstances: As a judgment creditor in respondent’s court, relator issued an execution and caused the seizure of property belonging to his debtor; and on the opposition of a tliird party, a judgment was rendered by the justice of the peace, allowing- the proceeds of the property thus seized to the third opponent. Subsequently, demand was made upon relator by the constable of the court for payment of costs incurred in the third opposition, for the preservation and preparation for sale of the property seized and sold under execution as above stated. On his refusal to pay the costs thus demanded of him, on the ground that the same were unlawfully charged to him, the respondent illegally caused execution to issue against him in satisfaction of the costs thus illegally charged to Mm, amounting- to a sum less than ten dollars, in the absence of any and all legal prerequisites. Whereupon relator sued out of respondent’s court a writ of injunction in order to restrain said unwarranted execution. On trial, his injunction was dissolved and the execution was thus allowed to proceed against him. Hence, his present application was made with a view to test the validity of the respondent’s proceedings. Conceding that the execution complained of had been wrongfully obtained, and that on the trial of relator’s injunction respondent erred in rendering a judgment dissolving the same and sustaining the wrongful execution, we find no warrant for our interference in the premises undei our supervisory jurisdiction. In the trial of the injunction over which respondent had undoubted jurisdiction, a jurisdiction invoked by the relator himself, all the rules of procedure and all the forms of law were followed and observed by the justice of the peace — who rendered his judgment only after a legal trial and after full hearing of the parties. The record contains no suggestion of the least invalidity of the proceedings, and the validity of the same is the only question for review under the writ of certiorari. Under such a proceeding this Court can exercise no appellate jurisdiction, and cannot review the judgment in order to pass upon or test its correctness, either in law or in fact. Such an examination is exclusively and solely within the province of the court having appellate jurisdiction in the premises. If no appeal lies from the judgment, it shares the fate of- all judgments which are not appealable in nature or character. The only question open for discussion in the proceeding before us, [970] under the pleadings, is the alleged error of the respondent in rendering a judgment maintaining and countenancing an execution alleged to have been obtained in wanton violation of law. To attempt to review that judgment would be on our part an assumption of an appellate jurisdiction which does not exist, and -would involve us in a greater error than that which is charged against the respondent. State ex rel. Wood & Bros. vs. Judge, 38 Ann. 377; State ex rel. Berthoud vs. Judge, 34 Ann. 782; State ex rel. Wood vs. Judge, No. 9773, not reported. We are, therefore, powerless to grant any relief to relator under these proceedings. It is, therefore, ordered that the alternative writs herein granted be set aside, that said writs be declined, and that relator’s application be hence dismissed at his costs. Mr. Justice Watkins dissents from this opinion, and reserves his right to present his views in writing.