Howard v. Pierce

Holmes, Judge, delivered the opinion of the court. This was a writ of prohibition against the defendant Pierce and the Justices of the County Court of Cooper county, upon a suggestion supported by affidavit, but without an exempli-ficatiori of the record of the proceedings being filed therewith. The suggestion or petition contains but a very vague and imperfect statement of the facts ; but we are enabled to gather from it, that the defendant Pierce had filed a petition in the County Court praying to have the plaintiffs ejected from the possession of a lot of ground, and a church building, situated thereon, in the city of Boonville. The plaintiffs do not appear to have been made parties to the proceeding, whatever it may have'been, and had no notice thereof; but it appears that the County Court proceeded to entertain jurisdiction of the matter, and made certain orders, the effect of which would be to put the petitioner in possession of the premises in question, ejecting the plaintiffs. This was certainly a very summary process of ejectment. We can only say that it is clear for one thing — ;that the County Court had no jurisdiction to entertain such a proceeding. It was said in the argument that the title to the property was vested in the county, and that the defendant’s application was only to have the liberty of taking possession of the church; but nothing of all this appears on this record. So far as we can see by the record before us, the prohibition was properly granted. The Circuit Court .has a superintending control over the County Court (R. C. 1855, p. 533, § 8), and power to issue all writs which may be necessary in the exercise of its jurisdiction according to the principles and usages of law. (Ibid. 36.) A prohibition may issue to forbid any judicial [301] proceeding beyond the proper jurisdiction of the inferior court—Thomas v. Mead, 36 Mo. 232; Washburn v. Phillips, 2 Metc. 296; Ex parte Brandlacht, 2 Hill, 367. As being a summary action of ejectment, this was clearly a judicial proceeding, whatever else may have been intended ; and when the Circuit C.ourt has jurisdiction over the subject matter, there can be no doubt of its power to issue this writ against any court of inferior jurisdiction over which it exercises a superintending control—Rees v. Lawler, 4 Bibb, 394. The defendant did not appear and answer the writ, otherwise than by a motion to quash ; which was overruled, and the prohibition was made absolute. This motion was properly overruled. It further appears that in the' judgment which was entered, an additional order was made, upon facts made to appear to the court, directing the clerk to issue a writ of restitution to restore to the plaintiffs the possession of the premises, which (we may infer) had been taken from them by virtue of the orders which had been made by the County Court in disobedience to the prohibition. We find no warrant in any authority for such a proceeding. The proper remedy for a contempt would seem to be an attachment, to be enforced by fine and imprisonment—8 Bac. Abr. by Bouvier, 244. The sheriff’s execution shows that he had made restitution, by putting the plaintiffs in possession of the church from which they had been thus unlawfully ejected. The defendant Pierce moved to set aside the judgment for the reason, among others, that this order of restitution was irregular, and his motion was overruled. The justices of the County Court appear to have acquiesced in the action of the court below, and refused to join with the defendant Pieirne in this appeal. On the whole, notwithstanding some irregularities, we do not see but that- substantial justice has been done; nor do we think it would be of any material advantage to the defendant here if the judgment should be reversed. The parties have other effectual remedies .to settle their respective [302] rights to the possession of this property—2 Hill, 367. We see no better way than to affirm the judgment, and it is accordingly affirmed. Judge Wagner concurs; Judge Lovelace absent.