Schobarg v. Manson

61 S.W. 999, 110 Ky. 483, 1901 Ky. LEXIS 98

• Court: Court of Appeals of Kentucky
• Decided: April 12, 1901
• Status: Published

Opinion

Opinion of the court by

JUDGE DuRELLE

Affirming.

One Louis Christian instituted an action against appellants, Schobarg and Ellis, in the court of appellee, a justice of the peace in Kenton county. Appellants filed an affidavit, and moved to transfer tlie case for trial to some other justice of the county. This motion being overruled, appellants instituted the present proceeding for a writ of prohibition, to prevent appellee from proceeding with the trial. A demurrer to the petition was sustained.

There seems but one question for decision, and that is whether the tiling of the affidavit and entry of the motion to transfer divests a justice of the peace of jurisdiction to try the case. If it does not, a writ of prohibition is not a proper remedy. When sitting .as a court to pass upon a motion, a justice of the peace is a judicial officer exercising a judicial function. If acting within the scope of his jurisdiction, a writ of prohibition does mot lie to control the exercise of his judicial discretion. If he is wrong in his judgment, it is error, to correct which appeal will lie in proper cases, but not prohibition. This exact question seems decided in an opinion by Judge Paynter in Galbraith v. Williams (Ky.) 50 S. W., 686 (21 R., 79). The judgment is affirmed.