Utah P'ltry Prod. Coop. Ass'n v. Dist. Ct. of S.L. C'nty

I concur in the order that the temporary writ of prohibition be recalled and quashed for the reasons: First, that no question of want or excess of jurisdiction is involved and the writ seeks only to determine if the lower court can, after a motion for a new trial has been granted as to all named defendants, properly determine whether or not seven of the defendants are still subject to the jurisdiction of the court for purposes of the new trial. Whether the court can properly so determine and whether its determination, if permissible, will be correct, only involves the question of whether error in pursuance of jurisdiction has been committed and not error in wrongly assuming jurisdiction. The trial court has jurisdiction to determine whether the seven defendants are in court or not, depending on whether they really appeared in the action, and if not, whether the motion for a new trial as to all named defendants, including these seven, was a general appearance which brings them in the proceedings for the purpose of a new trial. Any ruling on those questions, even though erroneous, is within the jurisdiction of the court.

Secondly, even under the liberalized use of the writ of prohibition mentioned in Atwood v. Cox, 88 Utah 437,55 P.2d 377, and used in Coors Co. v. Liquor Control Comm., 99 Utah 246,105 P.2d 181, 184, this writ should not issue. Undoubtedly a decision as to whether the seven defendants are now before the court because of the motion for a new trial, even though they previously had not appeared, would be in the interests of economy and convenience in determining who would or would not be subject to the judgment of the court on the new trial, and perhaps on the related subject of whether the judgment could extend only to the group as an entity or as individuals, and whether, therefore, the seven defendants were necessary in order to obtain a judgment good only against joint property.

It has been said that if the

"situation was such that if the writ did not issue, the applicant could not by the ordinary course of law even though he [eventually] prevailed substantially retrieve himself from the predicament in which the threatened action of the court or agency would place him, we would grant the writ even though there was no excess or lack of jurisdiction." Atwood v. Cox, supra, as interpreted in the writer's opinion in Coors Co. v. LiquorControl Comm., supra.

But while, in this case, it would be very convenient and trouble saving to know the status of these seven defendants in respect to the new trial granted the defendants in the original suit by the Poultry Association, the situation is not one where the stable door can be closed only after the horse is stolen. It may be that in cases like this there should be some form of intermediary review under a supervisory writ, but if so, it should come through either a rule of this court circumscribing its scope, if that is constitutional, or by legislative fiat, and not by judicial decisions.

For these reasons I concur. I consider it unnecessary to commit the court by inference or otherwise, any further than to recall the writ on the bases herein laid out. Whether Sec. 104-3-26, R.S.U. 1933, which is specifically limited to "two or more persons associated in any business" is applicable to labor unions, need not be decided expressly or by implication. (Italics added.)