Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-01-12
JUDGE G. P. LATHAM.
THE DECISION OF THE SUPREME COURT
RENDERED IN HIS CASE.
A Writ Of Prohibition Issued Against
Him-oplnions Of Judges Lacy
And Lewis.

day Judge Lacy delivered the opinion OF the
Court, ~ follows:
This is a petition on the part Of the Com
monweath invoking the original lurlsdlc-
ton OF this court IN prohibition.
In the tease OF Commonwealth ys. Jones,
decided In this court at the January term OF
1887. the Judgment OF the Corporation Court
OF Lynchburg was reversed by this court
and costs awarded to the Commonwealth,
amounting 10 S2J.92, expended IN the prose-
cution Of ber appeal. The judgment was
certified 10 the Corporation Court, and execu-
ton issued in favor OF the Commonwealth
against said Jones and placed in the hands
OF the Sergeant, who was proceeding by levy
10 make the money, when a chsncery SUIT
was instituted in the Corporation Court OF
LynchbuTg against the Commonwealth,
enjoinIng TIE said Sergeant from
leyylng for this debt upon certain allega-
tions not necessary 20 be stated, as the sole
question here Is whether the said Corpora
ton Court Oi Lynchburg had jurisdiction 10
entertain and try the case upon any grounds
whatever, for il the said court hath iurlsdic-
ton Of the suit any error committed therein
is corrected by appeal and prohibition VIII
not he, but II the said court bath not iuris-
diciion OF the case upon any grounds, then
the writ prayed for must issne. for that writ
ssueih out OF superior court TO restrain
and prohibit the inferior court from pro-
ceeding in some matter In excess OF It's
| jurisdiction.
The Code Of Virginia nS73, chapter lGj,
first section, clause fourth,) provides that II
the suit be one IN which 1t shall be attempted
10 eDjOin or otherwise suspend or aitect any
Judgment or decree on behalf OF the Com
monwealth or any execution Issued on said
Judgment or decree. the action or suit shall
be brought In the Circuit Court OF the city OF
Richmond.
This is a suit 10 enjoin an execution issued
under a Judgment in favor Of the Common
wealth, and the Circuit Court OF the city OF
Richmond is, by law. the sole tribunal au-
thofIZed to try or entertain II. NO such SUIT
can be maintained against the Common
wealth in the Corporation Court OF Lynch
burg, II follows that when Charles j. La
tbsm, as the Judge OF that court, undertook
10 render decree In the cause he was pro-
ceeding in excess Of bis jurisdiction snd in
the pIainest violation OF the laws Of this
Commonwealth. But il is argued he is now
out Of office. his successor having been elect
ed and qualified. Nevertheless the suit re-
mains In that court against the Com
mOnwealth in violation OF law and
the same must be prohibited. and there
is nothing in this record TO show any change
in the personal Of the judge, and that l. i'm
material. The writ directed in accordance
with the pleadlngs here will eiiectually ope-
rate the remedy and maintain the violated
law. II is turtber argued that no motion
was made in that court raising the question
o. want OF jurisdiction. | DO not so under
stand the record. which shows that a motion
was made to transfer the cause 10 the Cir
cult Court Oi Richmond city, which was
~ Je gonlH have hggp other
ground for this motion than that the law had
clothed that tribunal alone with the power 10
try this case, which was denied TO the COrDO-
ration Court Of Lvnchburg. Whatever view
NAV be taken OF this, however. II cannot be
necessary i'm this State 10 make any such mo-
ton: the Constitution clothes this court
with original jurisdiction In cases OF prohibi-
ton, and the writ may be asked for here IN
apv case when any inferior tribunal il pro-
cecding in excess OF ITS Jurisdiction, either
IN the institution OF any suit or in any mat
ter arising therein In the progress OF any
cause.
We are OF opinion that no preliminary
motion in that court was necessary, and that
the said Charles =. Latham, Judge OF the
said court, was proceeding IN excess OF his
jurisdiction IN entertaining the suit and
proceeding to decree therein. and that the
writ Of prohibition must issue as prayed for.
DISSENTING OPINION OF JUDGE LEWIS.
dissent from the opinion OF the Court In
this case on two grounds. The first Is, that
even If It were conceded that the court be-
low was without Jurisdiction, the case is pre-
maturely here. No question rs 10 the iuris-
dlcton was raised IN that c0urt, and conSe-
uueutlv no case is now made for the issuing
OF the extraordinary writ OF prohibition. At
common.iaw. 10 authorize a prohibition to
an inferior court. it was not only necessary
that formal plea to the jurisdiction should
be rendered In that court, but 10 must have
been rendered before importance. And the
common law rule, SAYS High, is generally sp-
plicqhle in this country, though not, I ap~
prehend. in all its ancient strlctness. There
fore, where there has been no effort made 10
obtain relief in the court which it is sought
10 prohibit, The superior courts VIII refuse
10 exercise their Jurisdiction by this extra
ordinary remedy. "For example" says the
same author, where an injunction has been
obtained in direct violation Of statute, and
without any Jurisdiction on the part
OF the Court (which Is exactly the
contention in tins casc) prohibition will
not be granted to prevent the Court from
proceeding with the Injunction suit where
no application has been made to dissolve the
injunc,lon.' High, EXtr Rem, section 40,
and eases cited. And the obvious reason
is that prohibition is an extraordinary rene
DIV. and therefore TO be resOTted 10 only in
cases where the usual aud ordinary forms of
remedy are insufficient TO afford redress. Id.
section 40.
Nor Is the rule in the remotest degree
affected by the provision OF the Constitution
O; this state. which simply declares that
Z A. teh hnI ann4llafp fnrtsliffion
only. eXcept in cases OF hdbedS corpus, man.
dauls, aud prohibition" That is all; and
how these words can be construed as
changing the rule aforementioned Is more
than am able TO comprehend.
Now, I'm the present ease, not only was
there no plea to toe jurisdiction OF the court
below, but nothing appears in the record 10
show that the jurisdiction was objected 10
in any manner. Nor was there any motion TO
dissolve the Injunction which was awarded
upon the filing OF the bill. Tue record. it is
true. recites th ,t on certain day the defend
ant "moved the Court to remove this cause
TO the Circuit Court OF the city OF Richmond,
10 be therein finally heard and determined,
which motion the Court oyerruled." But
this motion, 50 far from challenging the
jurisdiction Of the Court 10 entertain the
Suit. implies the contrary; for 1t is not based
jurisdiction to entertain the suit originally,
and therefore that tue pi oceedings were
roid, rs they clearly were II the theory OF the
Commonwealth be correct; but the applica-
tion was that the suit, as pending, valid
one, be removed TO another court, 10 be there
finally heard and determined. without as
signing sny reason for the application what
ever. This. take it, can no more be pro-
perly treated as a substitute for formal pleA
to the jurisdiction that the motion OF citi-
zen OF another Slate who Is sued in one Oh
our courts, TO remove the cause to the Cir
cult Courfof the United Ststes for trial. un-.
der the provisions Of the act OF Congress, can
be considered as plea 70 or denial OF the
original Jurisdiction OF the State court.
But my second proposition Is that the
court below bad jurisdiction OF the case aud
that the Circuit Court Of the city OF Rich
mond had not, the parties being residents OF
the city of Lyuchburg and the cause OF action
having arisen there-iD other words, accord
Ing to the decisions OF the Supreme Court OF
the United states, the tender OF the coupons
(which upon this record are admitted 10 be
genuine) in payment OF the Commonwealth's
ax..ufion "a. eauiVatfDt TO actual Dayment