The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-06-12
JNo. W. CRIsLER ct al,

| EARRAR MOkklsON'
Error to the Circuit Court LIST District
Kinds county, Hon. S. S. Calhoon judge
Crjsler and Morrison were candidates for
the office of Sheriff at the election Novem-
Der 4th, 1879. The Board of Registrars
returned the latter as elected. November
22d, Crisler filed his petition before G. NJ.
Lewis, Justice of the Heace, to contest the
election. Tho summons for Morrison was
not issued till November 9th, and made
returnable December ID. After the jury
was empannelled before the Justice, Nor
rison sued out writ of prohibition which
was executed on Crisler and the Justice
restraining them from proceeding further
with the cause, upon the ground that the
summons was not issued within the time
twenty days. required by law, and there
fore the Justice was without jurisdiction
to try the case.
In the Circuit, into which the writ of
prohibition was returnable, Crisler moved
to compel Morrison to file declaration,
but his motion was Overruled. He then
moved that the writ of prohibition be
dismissed, which was also oyerruled,
Morrison then moved that the writ be
made absolute, which motion was sus-
tanned.
From these rulings of the Court Crlsler
and the Justice prosecute writ of error.
J. W. jenkins and II. II. Ware for plain
tiffs in error.
Nugcnt & EcWillie for defendants in
error.
GEORGE, 1. j.,
Held
l. The powers of a Justice of the Peace
and of the tribunal organized by him for
the trial of an issue arising out of con-
tested election are special and limited.
2. The object of the statute Qaws 1878,
page 1I3) was to secure speedy trial of
such issues so that it might be determined
by the first Monday in the succeeding
january, when the term of the officers
elected in the proceeding November be-
gins, who were properly elected.
3. The Legislature intended not only |
that the petition should be filed within |
twenty days after the election but that the |
summons should be issued within that time
also.
4. The failure to issue the summons in
proper time prShsG fdcie establishes the
want of jurisdiction, and this prima facie
can only be overturned, if at all, by the
avement and proof on the part of the con-
testant that the delay was not the result of |
his consent, or neglect in demanding the
issuance of the writ in proper time.
D. The object of the writ of prohibition
is not only to prevent courts from usllrp-
ing jurisdiction not conferred on them
IN Nos fl,n ,;rrh |
powers of other courts, but it will lie
against pretended court usurping a
which belongs to no other
court.
6. In this case the remedy by appeal
was not adequate to the mischief, either to
the contestant or to the public. Morrison
would be deprived of the cmolumeDts of
the Office till the adverse Judgment could
be reversed, and the public would be sub
lected to the jurisdiction and power of an
officer whose only title to the office would
be the Judgment of an illegal tribunal.
Z. The right which existed at common
law to the defendant in prohibition to
demand declaration, for obvious reasons
1oes not exist in this State. The right
was put solely upon the ground that with
)ut 1t the defendant would not be entitled ,
o writ of error to revise the Judgment
nus rendered against him. The right to a ,
writ OF error in prohibition proceedings ,
Ices not at all depend in this State upon ,
he fact that the Judgment of the court !
Ielow was rendered upon regular proceed !
ngs by declaaatiOn, plea or demurrer.
3. The declaration ut common law i'm 4
was based on the fiction that !
writ of prohibition had been granted and /
lad been violated by the defendants. The i
lse of such fictiOns are absolutely pro- :
ibited by 81 of the Code. :
Judgmhnt affirmed.