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1. Power of the court.
4. In what cases issued.
1. Power of the court.] — Prohibition is not a proceeding in an action, but a special proceeding commenced by State writ, and is noticed here as sometimes a necessary last resort to prevent the prosecution of an action in a court having no jurisdiction. The power to issue it is inherent at common law in the highest court of general original jurisdiction, it being a part of the function of that court to restrain inferior tribunals of the same State from usurping jurisdiction.
2. Function of the writ.] — The writ does not, like an injunction, operate merely on the party,76 but upon the inferior tribunal itself, and aims to oust it of its asserted jurisdiction.
3. Grounds.] — It may issue to any inferior tribunal (and by V. Y. Code Civ. Pro., $ 2093, etc., to the Special Term of the Supreme Court itself), but only on the ground that the tribunal is not a properly constituted court, or has not jurisdiction of the subject-matter,or, having jurisdiction, is exercising or about to assert a distinct power of a judicial nature not within its jurisdiction.78
4. In what cases issued.] — It is an extraordinary remedy, to be issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in
76 Compare pages 412 and 822 of this volume; N. Y. Code Civ. Pro., $ 2096.
77 Including a controversy between parties exempt by law or treaty from the jurisdiction of the tribunal in question. People ex rel. Schumacher 1'. Marine Court, 6 Hun, 214; People ex rel. McAdam, 84 N. Y. 287.
78 Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Mayor, etc., 1'. Nichols, 79 N. Y. 582, rev'g 18 Hun, 530.
People ex rel. Oakley v. Petty, 32 Hun, 443 (holding also that the suffi. ciency of the service of papers was not the subject of review by this writ, but it does not appear by the case that these were papers in the nature of process relied on to give jurisdiction of the person.
equity, or by appeal, and is not demandable of right, but rests in sound judicial discretion to be granted or withheld according to the circumstances of each particular case.
5. The practice.] — The practice is generally regulated so much in detail by statute, that the practitioner should refer to the statutes of his own State in connection with the forms.
FORMS. 478. Affidavit to obtain alternative 480. Alternative writ of prohibiwrit of prohibition.
tion. 479. Order that alternative writ of 481. Allowance indorsed.
FORM No. 478. Affidavit or petition to obtain, at Appellate Division, alternative writ of pro
hibition to Special Term.81 To the Supreme Court of the State of New York. [Venue.]
R. L., being duly sworn, says:
I. [Here state facts showing action brought and prosecuted in a court having no jurisdiction.]
II. [May state sources of information, as follows:] That the foregoing allegations as to matters of record are made by deponent on information and belief derived from the examination by his said counsel of such of the papers in said proceedings as he has been able to obtain in the brief time since said order was served, to which leave to refer at length is hereby asked (and annex and refer to the order complained of, and any other papers desired to bring before the Supreme Court].
III. That said order of the Special Term and said proceedings have been had, and are taken without authority of law and
79 People er rel. Hummell v. Trial Term, 184 N. Y. 30, aff'g 105 App. Div. 595.
80 People ex rel. 1. Westbrook, 89 N. Y. 152, and cases cited; Thomson c. Tracy, 60 N. Y. 31; State er rel. Berryhill v. Cory (Minn. 1886), 28 N. W. Rep. 217 (holding that if the cause of action is within the jurisdiction, prohuition will not issue to forbid entertaining a defense not within the jurisdiction, but the remedy is appeal, etc.).
81 Sworn allegations essential ex. cept as to matters appearing on the
face of the record. State e. Hndnall, 2 N. & Mc. (So. Car.) 419.
without jurisdiction, and are and will be oppressive to said relator, and that adequate relief can only be had by writ of prohibition restraining said court (and receiver] from further proceeding in such action [or, under said order in said proceeding.]
[IV. Deponent further says that no Appellate Division of this court in the adjoining department is or has been since commencement of said action [or, the application for said order] in session, and that the next session of such Appellate Division for the
department is appointed to be held in , on day,
inst. ] V. That no previous or other application has been made for a writ of prohibition thereon to any judge or court (except, etc.82] [Jurat.]
FORM No. 479.
At an Appellate Division [etc. See p. 256.]
The People of the State of New
On reading and filing the affidavit of R. L., verified the day of , 19 , [and the order of the
Court thereto annexed, dated the day of , 19 , and the notice indorsed thereon), and on motion of A. A., attorney for the above-named relator:
ORDERED, that an alternative writ of prohibition issue out of and under the seal of this court, directed to the above-named de
82 See p. 116, paragraph 84, and p. 170 of this volume.
fendants, commanding them and each of them to desist and re frain from any further proceedngs by or under the said [order] made on or about the
or any subsequent order in pursuance or enforcement thereof] until the further directions of this court thereon, at an Appellate Division and directing them to show cause before this court, at a term of this Appellate Division to be held in and for the Judicial De partment, at the court house, in the city of of
19 , at the opening of the court on that day, why they should not be absolutely restrained from any further proceedings by or under said order, or [in the matter of the probate of the last will and testament of H., deceased]. Enter: [signature of presiding judge by initials of name and
in the county
FORM No. 480.
Alternative writ of prohibition. The People of the State of New York, on the relation of R.
L., to Hon. J. K., Justice of the Supreme Court, and to any Judge holding or to hold a Special Term of the Supreme Court, in and for the Judicial District, and to said Special Term, and to [J. W. H., as alleged Receiver of the personal estate, property, and equitable interest and things in action of J. H., deceased, and to the said J. W. H.], greeting:
Whereas, the said R. L., in our Supreme Court, at an Appellate Division thereof, held at the court house, in the city of day of
19, presented to said court the facts upon an affidavit that on or about the day of 19 the said Special Term made an order, entitled “In the Vatter of the Probate of the Last Will and Testament of J. A., Deceased,” which by its terms, purports to appoint said J. W. H. receiver of all the interests, dividends, or other income, personal estate, property, and equitable interests and things in action of J. H., deceased, as appears by the affidavit of H. W. H., treasurer, and of said R. L., verified the
19. And whereas, it further appears by said affidavit that you, the Hon. J. K., justice, aforesaid, and the said Special Term, and the said J. W. II., alleged receiver as aforesaid, and the said J. W. II., well knowing the premises, yet contriving, as it is said,
the said R. L. unjustly to aggrieve and oppress, are proceeding under the said order of said Special Term, and are proceeding to take possession of, exercise control over, and interfere with said property of said J. A., deceased. And that said order of the Special Term and said proceedings have been had, and are taken without authority of law and without jurisdiction, and are and will be oppressive to said R. L., and that adequate relief can only be had by writ of prohibition restraining you and each of you from further proceeding under said order and in said proceeding, which relief and writ the said R. L. asks of us.
We, therefore, being willing that the laws and customs of our State should be observed, and that our citizens should in no wise be oppressed, do command you, the said Hon. J. K., justice, aforesaid, and the Special Term of the Supreme Court, held in and for the
Judicial District, and any judge holding or to hold the same [and you, the said J. W. H., alleged receiver as aforesaid, and you, the said J. W. H., individually), to desist and refrain from any further proceedings by or under the said order of said Special Term, made on or about the
day of 19 , or any subsequent order in pursuance or enforcement thereof, until the further directions of this court, and that you show cause before our said court at a term thereof to be held at the court house, in the city of in the county of
19 , at the opening of the court on that day, why you should not be absolutely restrained from any further proceedings by or under said order, or in the matter of the probate of the last will and testament of J. II., deceased.
Witness, Hon. [name of presiding judge), presiding justice of
our said court, at an Appellate Division thereof, held at the court house, in the city of
By the Court,