Jaquith v. Justice's Court

WORKS, J.

E. C.Jaquith was originally the petitioner in this proceeding. After the present appeal was prosecuted he departed this life and Elmer M. Jaquith, executor of the last will and testament of E. C. Jaquith, deceased, was substituted in his place as appellant and petitioner.

This is a proceeding for the writ of prohibition. Petitioner appeals from an order or judgment of the trial court refusing to issue a peremptory writ.

Upon the filing of the petition the trial court issued its alternative writ of prohibition and the writ was served upon the respondents. After some sort of hearing, the nature of which is not clearly confided to us, the court made its order refusing to issue the peremptory writ. The record comes to us by bill of exceptions. The bill recites: “No answer or pleading of any kind was filed by the defendants, or either of them, in said matter above entitled.” Following a copy of the petition for the writ and copies of other papers which were served with it, the bill of exceptions next contains the recital that it appearing that the defendants had been duly and regularly served with the writ and other necessary papers, “the matters mentioned in said Petition were argued” by the respective attorneys, whereupon the court “made its order denying said Petition.” A copy of the order is then set forth in the bill. It shows: “This matter coming on regularly to be heard,” the parties on each side being “represented” by

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counsel, who are named, and “after hearing the arguments of counsel for both parties and after listening to the authorities cited in support of said arguments, the court being fully advised in the premises, denies the plaintiff’s application to make the Writ permanent.” This constitutes the total material showing of the bill of exceptions.

Unless we are able to determine from this unsatisfactory record that the court’s refusal to issue a peremptory writ did not spring from a failure of appellant to support the allegations of his petition by proof, the court’s order must be affirmed without going further. If the record allows the assumption that evidence was introduced and considered, we must also assume that the decision turned upon a question of fact and that the evidence supported the order which was made. We are bound to resolve all possible intendments in favor of the ruling of the court. Section 1088 of the Code of Civil Procedure, which concerns the writ of mandate, but which by section 1105 of the same code is made to apply also to the writ of prohibition, provides: “The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.” Section 1094, which is also made to apply to the writ of prohibition by section 1105, contains the following: “If no answer be made, the case must be heard on the papers of the applicant.” There are at least two decisions which seem directly to bear upon the meaning of these two sections. The first of these eases is