Baker v. Newton , 22 Okla. 658 ( 1908 )

In the consideration of this case, the first question that confronts us is: What is the office of the writ of certiorari as authorized to be issued by this court under section 2 of article 7 of the Constitution (Bunn's Ed. § 170)? Said section, in part, reads as follows:

"The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts, and all commissions and boards created by the law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law, and to hear and determine the same. * * *"

By section 4756 of Wilson's Revised and Annotated Statutes of 1903, the writ of certiorari was abolished, and the same did not exist as part of the jurisprudence of the territory of Oklahoma. No other reference is made to the writ in the Constitution than in the section above quoted, except in section 10, art. 7 (Bunn's Ed. § 180), where the power is conferred upon the district courts, or any judge thereof, to issue such writ. No procedure is prescribed in the Constitution, nor is it provided upon what condition the writ shall issue. By the use of this term, without any further qualifying phrase or clause than above quoted, since the law extended in force in the state contains no legislation upon the subject, except said section 4756, supra, which is in conflict with the Constitution, and therefore no longer in force, it must be taken that the framers of the Constitution and the people who adopted it intended to authorize the writ as it exists at common law as an aid to the Supreme Court in the exercise of its general superintending control over all inferior courts, boards, and commissions.

The Constitutions of Missouri, Michigan, and Wisconsin confer upon the Supreme Courts of those states, in language very similar to that used in our construction, quoted above, the power to issue writs of certiorari, and the language of said provisions in those Constitutions, or similar language, used in conferring like power upon the district courts of some of those states, has been frequently construed by the highest courts of those states, and has been held to authorize the writ of certiorari, as it exists at common law. State ex rel v. Dobson, 135 Mo. 1, 36 S.W. 238; State ex rel. v. Shelton, Judge, 154 Mo. 670, 55 S.W. 1008, 50 L. R. A. 798; Hannibal St. JosephR. R. Co. v. State Board of Equalization, 64 Mo. 294; State exrel. v. Chittenden, 127 Wis. 468, 107 N.W. 500; State ex rel.v. Williams, 123 Wis. 61, 100 N.W. 1048; Wardsworth v. Sibley,38 Wis. 484; Specht v. Detroit, 20 Mich. 170; Thompson v.School District Number Six, 25 Mich. 483; People ex rel. v.Judge of St. Clair Circuit, 32 Mich. 95.

The office of the writ of certiorari at common law is to bring up the record from an inferior court or tribunal to a superior court for investigation as to jurisdictional errors only. Harris v. Barber, 129 U.S. 366, 9 Sup. Ct. 314, 32 L.Ed. 697; Hamilton v. Town of Harwood, 113 Ill. 154; Miller et al.v. Trustees of School, 88 Ill. 26, 2 Spelling on Extraordinary Relief, pp. 1891-1915. The county court of Ottawa county had jurisdiction of the subject-matter of the action filed therein, and if there were any irregularities in the summons or the service thereof, when plaintiff, who was defendant in that court, appeared, filed his answer, and proceeded to trial without objection, that court acquired jurisdiction of the parties. Plaintiff's contentions all go to the alleged irregularities and illegal procedure of the court in the trial of the case, but these alleged errors cannot be reviewed in this proceeding, because plaintiff has a plain, speedy, and adequate remedy by appeal.

Certiorari, at common law, is an extraordinary and severe remedy, and does not lie where there is an adequate remedy by appeal; Alabama Great Southern Ry. Co. v. Christian, 82 Ala. 307, 1 So. 121; Philip Farrell v. Taylor, 12 Mich. 113;Clary v. Hoagland, 13 Cal. 174; Alexander Wood v. Myrick, 9 Minn. 149 (Gil. 139);Ennis v. Ennis, 110 Ill. 78; Miller v. Trustees of School,supra,

And the rule announced in these opinions is in harmony with the general rule as laid down in volume 4, p. 5, Encyclopedia of Pleading and Practice.

Under sections 4743 and 4748 of Wilson's Revised and Annotated Statutes of 1903, an appeal may be taken from any judgment or final order of the district court to the Supreme Court, within one year after the rendition of any such judgment or final order complained of. Section 15, art. 7 of the Constitution (section 187, Bunn's Ed.), grants the right of appeal to the Supreme Court from judgments in all civil cases originally brought in the county court, in the same manner, and by a like proceeding, as appeals are taken from the district courts to the Supreme Court. Plaintiff is therefore afforded a plain, speedy, and adequate remedy by appeal from the judgment rendered in the county court of which he complains, which he may exercise at any time within one year from the rendition thereof. The period of time within which he can take his appeal has not yet expired; nor will plaintiff be defeated of this right of appeal if the judgment rendered in the county court is void, which we do not determine, for the reason, as contended by him, that it was not rendered in term time. The decided weight of authorities is that appeal will lie from a void judgment. 2 Cyc. 590, and authorities there cited. It is true that courts of some jurisdictions have held that a judgment rendered in vacation is so wanting in color of judicial authority that an appeal will not lie therefrom. Campbell Martin v. Chandler, 37 Tex. 32; Doss v. Waggoner 3 Tex. 516;Staab v. Atlantic Pacific Ry Co., 3 N.M. 349, 9 P. 381;Brumley v. State, 20 Ark. 77; Backer et al. v. Eble et al.,144 Ind. 287, 43 N.E. 233. But the Supreme Court of Kansas, from which state the Code of Civil Procedure now in force in this state was adopted by the territory of Oklahoma, repeatedly held, prior to the adoption by the territory of Oklahoma of said Code, that a judgment rendered out of term time, though void, is one from which an appeal will lie.Earls v. Earls, 27 Kan. 538; Brinkman v. Shaffer, 23 Kan. 528;Winkfield v. Brinkham, 31 Kan. 26, 2 P. 113; Atchison, Topeka Santa Fe Ry. Co. v. Keller, 31 Kan. 439, 2 P. 771; Mitchellet al. v. Insley, 33 Kan. 654, 7 P. 201.

Plaintiff alleges in his petition that, after the rendition of judgment in the trial court, he gave notice of an appeal to the district court, but was informed by the defendant, Talbot, that no appeal would lie to the district court, and that thereupon he gave notice of appeal to the Supreme Court, and was informed by the defendant, Talbot, that the amount involved was less than $100, and no appeal to the Supreme Court would be allowed. It has not been made to appear to us how, in any manner, this action of the county judge could have the effect to prevent plaintiff from appealing from said judgment. Plaintiff is not required by the statute to give notice to the county court of an appeal from its judgment where such appeal is desired, nor is it necessary to have such appeal allowed by the court. To perfect his appeal plaintiff is required to prepare his record as provided by the satute and file it with his petition in this court within one year from the rendition of the judgment in the trial court, and that time has not yet expired.

After a careful consideration of all the matters set forth in plaintiff's petition, supplemented by the original papers and record of the case in the county court filed herein by defendant, Talbot, and after a careful review of the authorities, we are of the opinion that the writ in this case was improperly issued, and should be dismissed of the court's own motion, and it is so ordered.

All the Justices concur.