Commonwealth v. Latham

8 S.E. 488, 85 Va. 632, 1889 Va. LEXIS 75

• Court: Supreme Court of Virginia
• Decided: January 10, 1889
• Status: Published

Opinions

Lacy, J.,

delivered the opinion of the court.

This is a petition on the part of the Commonwealth, invoking the original jurisdiction of this court in prohibition. In the case of Com’th v. Jones, the judgment of the corporation court of Lynchburg was reversed by this court, and costs awarded the Commonwealth in the sum of $25.92, expended in the prosecution of her appeal. The judgment was certified to the corporation court, and execution issued in favor of the Commonwealth against said Jones, and placed in the hands of the sergeant, who was proceeding by levy to make the money, when a chancery suit was instituted in the corporation court of Lynchburg against the Commonwealth, enjoining the said sergeant from levying for this debt, upon certain allegations not necessary to be stated, as the sole question here is whether the said corporation court of Lynchburg had jurisdiction to entertain and try the case upon any grounds whatever; for, if the said court hath jurisdiction of the suit, any error committed therein is corrected by appeal, and prohibition will not lie. But if the said court hath not jurisdiction of the case upon any grounds, then the writ prayed for must issue, for that writ issueth out of a superior' court to restrain and prohibit the inferior court from proceeding in some matter in excess of its jurisdiction. The Code of Virginia (1813, c. 165, § 1, cl: 4) provides that if the suit be one in which it shall he attempted to enjoin, or otherwise suspend or affect, any judgment or decree on behalf of the Commonwealth, or any execution issued on said judgment or decree, the action or suit shall be brought in the circuit court of the city of Richmond.

This is a suit to enjoin an execution issued under a judgment in favor of the Commonwealth, and the circuit court of Richmond city is by law the sole tribunal authorized to try or entertain it. No such suit can be maintained against the Commonwealth in the corporation court of Lynchburg. It follows that when Charles P. Latham, as the judge of that court, undertook to render a decree in the cause, that he was proceeding in excess of his jurisdiction, and in the plainest violation of the laws of this Commonwealth. But it is argued that he is now out of office, his successor having been elected and qualified. Nevertheless, the suit remains in that court against the Commonwealth in violation of law, and the same must be prohibited, and there is nothing in this record to show any change in the personnel of the judge, and that is immaterial. The writ directed in accordance with the pleadings here will effectually operate the remedy and maintain the violated law. It is further argued that no motion was made in that court raising the question of want of jurisdiction. I do not so understand the record, which shows that a motion was made to transfer the cause to the circuit court of Eicbmond city, which was overruled. There could have been no other grounds for this motion than that the law had clothed that tribunal alone with the power to try this case, which was denied to the corporation court of Lynchburg. Whatever views may be taken of this, however, it cannot be necessary in this State to make any such motion. The constitution clothes this court with original jurisdiction in cases of prohibition, and the writ may be asked for here in any case, when any inferior tribunal is proceeding in excess of its jurisdiction, either in the institution of any suit, or in any matter arising therein in the progress of any cause. We are of opinion that no preliminary motion in that court was necessary, and that the said Charles P. Latham, judge of the said court, was proceeding in excess of his jurisdiction in entertaining the suit, and proceeding to decree therein, and that the writ of prohibition must issue as prayed for.

Hinton, J., dissented.