Coker v. Superior Court

McKee, J.: By the return to the writ issued in this case it appears that the relator, as respondent in an action pending in the Superior Court of Colusa County, on appeal from the judgment of a Justice of the Peace, had made three motions in the case, viz.: one to dismiss the appeal on the ground that the undertaking on appeal was not filed in the Justice’s Court, until several days had elapsed after service and filing of the notice of appeal; another to amend his notice of motion by inserting in it, as an additional ground, that the notice of appeal was not served on the same day it was filed; and the third to dismiss the appeal on the same ground.

[178]By the petition of the relator, it appears that the judgment appealed from was rendered June 12th, 1880; that sendee of the notice of appeal was acknowledged by the attorney for the plaintiff June 16th, 1880; that the notice of appeal, with the indorsement of acknowledgment of service thereon, was filed with the Justice June 17th, 1880; and that the undertaking on appeal was filed July 7th, 1880.

Before the argument and submission of the first motion to dismiss the appeal, appellant’s attorney made and filed an affidavit, upon which he asked leave to file a new undertaking on appeal. On that application, time was granted the respondent to file a counter-affidavit. He did not avail himself of the privilege; and it does not appear, by suggestion or otherwise, in the petition of the relator, that the Court has acted, or is about to act, upon the application. A writ of prohibition never issues to review what has already been done, nor to prevent the doing of an act which is not threatened to be done.

The Court denied each of the motions made to dismiss the appeal, and, after it had so decided, set the case down for trial, on a day certain, by consent of counsel. Whether or not the Court erred in its decisions upon those questions can not be inquired into on this application. A writ of prohibition is a preventive, not a remedial process. It can not he used to take the place of an appeal, or writ of certiorari, or other mode of review. Whenever any of these remedies is available prohibition can not he resorted to. (Ex parte Roundtree, 51 Ala. 51.) Having decided the motions, and set the case for trial on a certain day, the only question presented is, whether the Court in undertaking to try the case is acting without or within its jurisdiction, and that depends upon whether the appeal as taken was sufficient to give the Court jurisdiction over the case.