People ex rel. Pratt v. Stevens

33 Colo. 306

• Court: Supreme Court of Colorado
• Decided: January 15, 1905
• Docket: No. 4913
• Status: Published

Opinion

Per Curiam.

The facts necessary to consider in determining this application are as follows: A Mrs. Nishwitz brought an action for divorce in the county court of Arapahoe county. The defendant filed a motion for a change of place of trial upon the ground of residence, and the place of the service of the summons, claiming that by his motion he was entitled to the change as a matter of right. The motion was overruled. He then applied to the distriet court of Mesa county for a writ of prohibition against the county court. In response to the alternative writ the petitioner filed a motion for a change of place of trial to the district court of Arapahoe county, claiming that he was entitled to such change as a matter of right. This motion was overruled, whereupon application was made by the petitioner to this court for a writ of prohibition against the district court of Mesa county.

In People ex rel. v. District Court, 29 Colo. 1, it was said:

“A writ of prohibition is not one of right. It may issue in extraordinary eases in the exercise of a sound discretion of the court to which the application, therefor is addressed; but never where the ordinary remedies by law are applicable and adequate. Neither should it be permitted to supersede the ordinary functions of an appeal or writ of error. ’ ’

That ruling is particularly applicable to this case. Irrespective of the question of the jurisdiction of the district court, it -is plain that the questions which the réal party in interest desires to litigate and have determined in this proceeding can be reviewed on appeal, or error, from the final judgment of the district court, and that such procedure is adequate. No rights of the parties in interest will be jeopardized by remitting them to these remedies.

The application is denied and the proceedings dismissed. Dismissed.