Affirmative Act. affirmative act.1 Beyond this, the writ can accomplish no - 7. Enforcement of Writ-Contempt Proceedings. If the inferior court or the opposite party proceeds after the service of the rule to show cause or of the preliminary writ of prohibition, or after the issuance of the peremptory writ, the superior court will, upon application, issue an attachment for contempt and enforce obedience to the rule or writ by fine and imprisonment." 8. Costs Plaintiff Usually Taxed. When the writ is granted, the --- Range of Efficiency of Writ. In State v. Rombauer, 105 Mo. 103, the court said: "The range of efficiency of the writ of prohibition is in some circumstances quite broad. Where it may properly issue to stop unfinished proceedings whereof the court (in which the cause is pending) has no jurisdiction, it may sometimes be so framed as to annul prior as well as to stay further action therein, when the justice of the particular case requires it. The writ was not regarded at common law as a matter of mere form, but was considered possessed of sufficient vitality and power to meet exigencies of the cases requiring its application. It was never supposed that a tribunal, without lawful power to act at all, might (upon objection made to its jurisdiction) remove the possibility of all scrutiny of its actions by mere celerity in using the machinery of the law." 1. U. S. v. Hoffman, 4 Wall. (U. S.) 158. Affirming Judgment. — The judgment of the lower court cannot be affirmed when a petition for the writ is dismissed. Peters v. Rhine, 10 Tex. 215. Stipulation of Counsel. The court exhausts its authority on an application for prohibition in determining whether the act sought to be prohibited is in excess of jurisdiction or not, and cannot extend its inquiry on a stipulation of counsel that the merits of the question raised may be passed upon. Powelson. Lockwood, 82 Cal. 613. an order granting a change of venue was prohibited after the venue had been changed, the cause was ordered to be returned to and reinstated on the docket of the court from which it was removed. In State v. St. Louis Ct. App., 97 Mo. 276, a prohibition was directed to the Court of Appeals to restrain it from taking further cognizance of a case in which the appeal lay to the Supreme Court and not to it, requiring the case to be transferred to the Supreme Court. In State . Superior Ct., 12 Wash. 677, the writ was issued to prohibit an order directing a receiver to take possession of the relator's property, and the lower court was required to issue the necessary orders to place the relator in possession of the property wrongfully taken from it by the receiver. In Howard v. Pierce, 38 Mo. 296, the Circuit Court awarded to petitioners for prohibition a writ of restitution to restore them to the possession of property from which they had been ejected by the County Court, in an action to which they were not parties. The Supreme Court affirmed the action of the Circuit Court, on the ground that substantial justice had been done, although holding that the writ of restitution was unwarranted. 2. Croucher v. Collins, I Saund. 136 note; Havemeyer v. Superior Ct., 87 Cal. 267; Howard v. Pierce, 38 Mo. 296; State v. Elkin, 130 Mo. 90; Jelly v. Dils, 27 W. Va. 267; State v. Hungerford, 8 Wis. 345. In Henry v. Steele, 28 Ark. 455, the court refused to hold the judge of the inferior court in contempt for proceeding after notice of an application for the writ. Writ Issued Without Authority. — In State v. Judge, 39 La. Ann. 97, it was held that if the writ was issued by a court having no power to grant it, the lower court might ignore it and could not be punished for the transgression. plaintiff in the suit prohibited is usually taxed with the costs of. the application.1 The Judge of the Inferior Court, although the record party, cannot be taxed with the costs.2 When the Petition Is Dismissed or the Rule Discharged, costs are adjudged against the applicant.3 Where Plaintiff Below Abandons or Submits. - The plaintiff in the inferior court is not taxed with the costs when he voluntarily abandons so much of the cause as is beyond its jurisdiction before the decision on the rule, or if he does by order of court what the petition seeks to accomplish.” 9. Appeal Order Granting Writ. An appeal lies from an order granting the writ.6 Refusal to Grant Writ. It has been held that a refusal to grant the writ cannot be reviewed on proceedings in error, on the ground that it is discretionary with the court whether or not the 1. Bartless v. Beaufort, 47 S. Car. 225; People v. Spiers, 4 Utah 385; Burlington v. Burlington Traction Co., 70 Vt. 491; State v. Superior Ct., 6 Wash. 112; Hein v. Smith, 13 W. Va. 358; Ensign Co. v. Carroll, 30 W. Va. 532; Ex p. Tucker, 4 M. & G. 1079, 43 E. C. L. 555; Robinson v. Emanuel, L. R. 9 C. P. 414; Quartly v. Timmins, L. R. 9 C. P. 416; Reg. v. Justices, (1894) I Q. B. 453. In Wallace v. Allen, L. R. 10 C. P. 607, it was held that the court might make the rule absolute or discharge it with or without costs. In England, under statute 1 Wm. IV., c. 21, § 1, costs can be allowed only when there is judgment on the record, and not when there is a mere decision on the rule without pleadings. Ex p. Overseers of Everton Tp., L. R. 6 C. P. 245; Rex v. Kealing, i Dowl. P. C. 440. This statute does not extend to costs in the lower court, however. Tessimond v. Yardley, 5 B. & Ad. 458, 27 E. C. L. 105. Va. 326. But in People v. House, 4 3. State v. Skinner, 32 La. Ann. 1092; State v. Judge, 33 La. Ann. 927; State v. Houston, 35 La. Ann. 1195; State v. Rightor, 40 La. Ann. 837; Hudson v. Judge, 42 Mich. 239; State v. Scarritt, 128 Mo. 331; Low v. Crown Point Min. Co., 2 Nev. 75; People v. Russell, 49 Barb. (N. Y.) 351; State v. Stackhouse, 14 S. Car. 417; Brooks v. Warren, 5 Utah 89; State v. Kyle, 8 W. Va. 711. Order Concerning Costs. If the petition is dismissed without an order concerning costs, they cannot be adjudged against the relator. Beaufort v. Danner, 1 Strobh. L. (S. Car.) 176; State v. Jervey, 4 Strobh. L. (S. Car.) 304. 4. Ellis v. Fleming, 1 C. P. Div. 237. At common law, if the defendant submitted, proceedings in the inferior court were stayed without costs. Croucher v. Collins, I Saund. 136 note; Gegge v. Jones, 2 Stra. 1149; Ex p. Williams, 4 Ark. 537. 5. Pezuela v. Superior Ct., 83 Cal. 49; State v. Perrault, 48 La. Ann. 474. Contra, State v. Superior Ct., 16 Wash. 347. 6. People v. Justices, 81 N. Y. 500. In California Furniture Co. v. Halsey, 54 Cal. 315, an order granting the 2. State v. Superior Ct., 5 Wash. 518; County Ct. v. Armstrong, 34 W. writ shall be granted; 1 but the better rule, and the one generally followed, is that where all the proceedings appear of record the refusal of the writ may be reviewed on error. Effect of Appeal. — An appeal from an order refusing the writ has been held not to keep in force the rule or preliminary writ.3 writ was held to be in excess of the jurisdiction of the lower court, and was annulled on application for certiorari. 1. State v. Levens, 32 Mo. App. 520; State v. Bowerman, 40 Mo. App. 576; People v. Court of C. Pl., 43 Barb. (N. Y.) 278; People v. Westbrook, 89 N. Y. 152. These cases follow St. David's v. Lucy, Ld. Raym. 545, in which the House of Lords refused to allow a writ of error to the denial of the writ. 2. Smith v. Whitney, 116 U. S. 167. In State v. Board of Health, 90 Mo. 169, the appeal was dismissed on the ground that the Supreme Court had no appellate jurisdiction of the matter involved in the application for the writ. 3. Gibbs v. Louisville, 95 Ky. 471. In State v. Board of Education, 19. Wash. 8, it was held that the Supreme Court could issue a supersedeas to preserve the status quo of the parties until the determination of the appeal upon its merits. INDEX. ABANDONMENT. Patents, defense in infringement suits, 116. ABATEMENT. Penal action, death of defendant, 301. death of informer, 301. remedial statutes, 301. Pleading matters in bar or abatement, 554. Prematurity of suit, plea in abatement, 879. Privileged person arrested or served with process, plea in abatement, 979. ABSQUE HOC. Special traverse, 547. ACCIDENTS. See article PERSONAL INJURIES, 371. ACCORD AND SATISFACTION. See article PAYMENT, 164. Evidence under plea of payment, 211. ACCOUNTING. Decree for accounting in suit for infringement of patent, 141. Pledgor, right to accounting, 646. Principal and agent, accounting between, 919. ACTIONS. Abatement of penal action, 301. Contest of wills, suits for. See PROBATE AND CONTEST OF WILLS. Guarantor, action by, against principal, 957. Guarantyship, action to enforce contract of, 939. Penal actions. See article Penalties and PENAL ACTIONS, 229. ACTIONS- Continued. Personal injuries, actions for. See article PERsonal Injuries, 371. Pledge action to enforce pledgee's and pledgor's rights, 630. 648. Poor districts, action by one against another, 658. action by individual against, 660. Popular actions, 233. Postmaster, action against for negligence, misconduct, etc, 767. Præcipe, nature of action to be stated, 772. Prayer for relief as determining nature of, 776. Premature suits and actions, 873. Principal and agent, actions by and against third persons and inter se, 888, Privilege from arrest on service of process, actions for breach of, 983. Qui tam actions, 233. Rejected wills, statutory suits to establish, 1065. Surety, action by, against cosurety, 958. actions by, against principal, 951. Suretyship, action to enforce contract of 928 ADDRESS. Petition, title and address of, 515. ADJOURNMENT. Poor debtor acts, adjournment of proceedings, 722. ADMINISTRATORS. See ADMINISTRATORS AND EXECUTORS. ADMIRALTY. Decree condemning property as forfeited, appeal, 306. By failure to deny, 567. AFFIDAVIT. Leave to sue as poor person, 686. Petition, hearing of, 521. AFFIDAVIT OF DEFENSE. Principal and agent, 906. AFFIRMATIVE RELIEF. Patent interference suits, 28. AGENCY. See article PRINCIPAL AND AGENT, 888. AGGRAVATION. Justification of matters in aggravation, 566 AIDER. Plea, aider by, 580. AIDER BY VERDICT. See VERDICT. ALIAS WRIT. Writ of possession, 758. |