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enticing the husband away, or for in- to have criminal intercourse with her, ducing him to abandon or desert his could not maintain an action against wife. We are quite safe in saying that such other woman for the criminal at common law no such action could conversation. have been maintained."

In England the "Matrimonial Causes In Lellis v. Lambert (Ont.) supra, Act" (20 & 21 Vict. chap. 85, § 59) the court held that neither at com- abolishes the action of criminal conmon law nor by statute (Ont. Rev. versation. Prior to that act, it was Stat. chap. 132, S$ 2, 3, 4, and 14) said in Lynch v. Knight (1861) 9 H. could a wife maintain an action found. L. Cas. 577, 11 Eng. Reprint, 857, 8 ed on adultery with her husband, say- Eng. Rul. Cas. 382, by way of dictum: ing that the statute referred to in- “The loss of conjugal society is not a creased only the woman's power to sue pecuniary loss, and I think it may be for a violation of a property right. a loss, which the law may recognize, In that case the court expressly over- to the wife as well as to the husband. ruled Quick v. Church (1893) 23 Ont. The wife is not the servant of the husRep. 263, wherein it was held that a band, and the action for criminal conmarried woman could maintain a suit

versation by the husband does not, at common law against one who, by like the action by a father for seduc. procurement and enticement, lived in

tion of a daughter, rest on any such adultery with her husband, the court

fiction as a loss of the services of the saying: "The action for criminal con

wife. The better opinion is that a versation may be a disgrace to our law,

wife could not maintain or join in but it would be a still greater disgrace

an action for criminal conversation to our law if it existed only for the

against the paramour of her husband, husband and not for the wife." In Weston v. Perry (Ont.) supra,

who had seduced him. But ļ conceive the court, following and citing Lellis

that this rests on the consideration v. Lambert (Ont.) supra, held that

that, by the adultery of the husband, neither at common law nor under the

the wife does not necessarily lose the Married Woman's Act could a wife

consortium of her husband; for she maintain an action against another

may, and, under certain circumstances woman for criminal conversation with she ought to, condone and still enjoy her husband, or alienation of his af- his society; whereas condonation of fections.

conjugal infidelity is not permitted to So, in Lawry v. Lawry (1901) 2 Ont. the husband, and, by reason of the inL. Rep. 162, the court held that the jury of the seducer, the consortium wife of a husband, who had been en- with the wife is necessarily forever ticed and seduced by another woman lost to the husband.” W. J. K.


SUPERIOR COURT of King County, Washington, et al.

Washington Supreme Court (Dept. No. 2) - April 10, 1918.

(101 Wash. 81, 172 Pac. 257.)

Mandamus — to compel exercise of jurisdiction.

1. Mandamus lies to compel an inferior court to exercise jurisdiction which it has erroneously declined to do.

[See note on this question beginning on page 582.]

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(101 Wash. 81, 178 Pac. 257.) Definition - jurisdiction.

superintendent of the hospital to dis2. Jurisdiction is the power by charge patients who have recovered which courts take cognizance of and

their sanity, or the repeal of a statute decide cases.

which conferred upon the court ex[See 7 R. C. L. 1029.]

press power to do so. Insane person - power of court to re

[See 14 R. C. L. 564, 565.] lease from hospital. 3. The power of a court of general

Courts power to enforce decrees. jurisdiction to release a person who

4. A court of equity has power to has recovered his sanity after being enforce its decrees in its own way in committed to an asylum is not de

the absence of a prescribed procedure. stroyed by a statute permitting the [See 10 R. C. L. 565, 566.]

(Mount and Parker, JJ., dissent.)


APPLICATION for a writ of mandate to compel the respondent judge to take possession of and hear relator's petition as to the sanity of her father, under parole as an insane person. Writ to issue.

The facts are stated in the opinion of the court.
Messrs. Davis & Neal, for petition- Chadwick, J., delivered the opin-

ion of the court: The superior courts of the state of

This is an application for a writ Washington have power, in the ab

of mandate to compel the respondsence of a specific statute to that ef

ent superior judge to take jurisdicfect, to restore to capacity a man once declared insane.

tion of, and hear the petition of the 23 Cyc. 1120; State ex rel. Keasal relator, who appears as the next v. Superior Ct. 76 Wash. 291, 136 Pac. friend of Judge R. Andrews, who 147; Moore v. Perrott, 2 Wash. 1, 25 is under the parole of a superior Pac. 906; Reformed Presby. Church v. judge of King county as an insane McMillan, 31 Wash. 643, 72 Pac. 502;

person. Relator filed his petition Alaska Bkg. & S. D. Co. v. Noyes, 64 in the original proceeding, setting Wash. 672, 117 Pac. 492; Re Ostlund,

up the present sanity of Andrews, 57 Wash. 359, 135 Am. St. Rep. 990,

and asking the court to so declare 106 Pac. 1116.

Mr. James B. Kinne, for respondent by order or judgment. judge:

The wife of Andrews, who had Equity jurisdiction of the court does theretofore been appointed as his not exist in the United States except guardian, appeared by counsel and through statutory enactments.

demurred to the petition. The mat3 Pom. Eq. Jur. 3d ed. & 1313; Oak- ter coming on regularly to be heard, ley v. Long, 10 Humph. 253; Fentress

the court entertained a plea to the v. Fentress, 7 Heisk. 428; Dodge v.

jurisdiction of the court to hear the . ; Hamilton v. Trąber, 78 Md. 26, 44 Am. petition, and held that the superior

. St. Rep. 258, 27 Atl. 229; Hughes v.

court was without jurisdiction to Jones, 116 N. Y. 67, 5 L.R.A. 632, 15

hear and determine. At the reAm. St. Rep. 386, 22 N. E. 446; Dowell quest of counsel a judgment of disv. Jacks, 58 N. C. (5 Jones, Eq.) 417;

missal was withheld until applicaSporza v. German Sav. Bank, 192 N. tion could be made to this court for Y. 8, 84 N. E. 407; 22 Cyc. 1120. a writ of mandate.

The legislature had power to del- Although counsel waives all quesegate authority over insane persons tion as to the propriety of granting to the superintendent of an insane

the writ, we have not been able to hospital as a part of the police power overcome the objection sua sponte of the state.

of at least one member of the de12 Cyc. 925; Carstens v: De Sellem, partment, that the writ should not 82 Wash. 643, 144 Pac. 934; State ex rel, Chicago, M. & St. P. R. Co. v. Pub

issue for the reason that relator lic Service Commission, 94 Wash. 274, has an adequate remedy by appeal. P.U.R 1917C, 631, 162 Pac. 523.

It is said that the writ cannot is


cise of

Definitionju iction,

sue without overruling certain de- Shannon v. Hunter, 3 Wash. 92, 27 cisions of this court. It seems to Pac. 1076, where the court, although the writer and his associates who admitting a doubt which to us join in this opinion that a writ may seems fanciful, held on authority issue. But for the objection, we that "the proper remedy, where a have thought that the right of a cause has been erroneously dis

court to direct an missed for want of jurisdiction, is

inferior to compel exercourt to mandamus." This case

was folassume jurisdiction lowed in State ex rel. Maltby v. Sujurisdiction.

in a proper case, perior Ct. 7 Wash. 223, 34 Pac. 922. where jurisdiction had been de- In this case the court says the rule nied, and to hear and determine, rests in the highest authority. Of had never been questioned.

this there can be no question. It Jurisdiction is the power to hear may be questioned whether any au

and determine. It thority can be found to the conis the power by trary. See also State ex rel. Smith

which courts take v. Parker, 12 Wash. 685, 42 Pac. cognizance of and decide cases. 113; State ex rel. Smith v. Mc

"Jurisdiction is of two sorts Clinton, 17 Wash. 45, 48 Pac. 740. jurisdiction over the subject-mat- Lack of space permits the citation ter, and jurisdiction over the party of but few of scores of cases. The with reference to that subject rule is recognized by every textmatter.” 4 Words & Phrases, p. writer, and may be found in every 3884.

encyclopedia. “It is settled beyond controversy Says Mr. High in his Extraordithat where a court, acting on an nary Legal Remedies: "The juriserroneous view of the law, declines diction by the writ of mandamus jurisdiction of a cause, mandamus over inferior judicial tribunals, alwill lie to compel it to take cog- though closely guarded and jealnizance thereof." Note in Ann. ously exercised by the courts, is too Cas. 1915D, 199.

well established to admit of conSee also 26 Cyc. 190 et seq.: It troversy, and forms one of the most was "one of the ancient offices of salutary features of the general this writ

to compel action jurisdiction of the courts by mandaby lower judicial tribunals re- mus. It is most frequently invoked specting matters properly before for the purpose of setting inferior them and within their jurisdiction. courts in motion, and to compel If such courts decline to exercise them to act when action has been their judicature or to decide mat- either refused or delayed. The ters pending before them, manda- earlier remedy adopted in England mus has always been regarded as

for the refusal or neglect of justice the appropriate means by which to set in motion their jurisdictional of procedendo ad judicium. This

on the part of the courts was by writ power. It lies to compel the per

was an original writ, issuing out of formance of whatever appertains chancery to the judges of any subto the duty of lower courts, where ordinate court, commanding them there has been for any reason a re- in the King's name to proceed to fusal to act. Its agency in cases of judgment, but without specifying this class is confined to setting in any particular judgment. If this motion the judicial activities so writ was disobeyed, or if the judges that a decision will be reached, but to whom it was addressed still negit does not extend to any direction lected or refused to act, they were as to what that decision ought to liable to punishment for contempt, be.” Crocker v. Justices of Supe- or by an attachment returnable rior Ct. 208 Mass. 162, 94 N. E. 369, either in the King's bench or in the 21 Ann. Cas. 1061.

common pleas. The use of the writ It was so held in State ex rel. of procedendo for the purpose of

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(101 Wash. 81, 172 Pac. 257.) quickening the action of inferior make it good law if it were bad, like courts, and preventing a delay of many first impressions, it will not justice, has, in modern times, been stand the test of reason. It will not superseded by the writ of manda- go on paper, and this, we suspect, is mus. And the latter is now regard- why it finds no mention in the books. ed as the proper, if not the only, It is fundamental that a higher remedy by which the sovereign court will not control the judicial power may compel the performance acts of an inferior court. It will of official duty by inferior magis- not invade the realm. Its prime trates and officers of the law."

. function is to review for error. The High, Extr. Leg. Rem. $$ 147, 148. first consideration, then, must be to

See Spelling, Inj. & Extr. Rem. determine the character of the act 2d ed. § 171; Works, Courts & Juris- of the inferior court. Is a judgdiction, p. 620; Merrill, Mandamus, ment of dismissal based upon a de$$ 36 and 203; Tapping, Manda- nial of jurisdiction over a subjectmus, § 154.

matter a judicial act in the sense The theory advanced against the that it is a judgment which ought weight of authority is: If a court to be reviewed on appeal? has no jurisdiction, it must be A dismissal under the mistaken granted that it has jurisdiction to belief that the court has no jurishold that it is without jurisdiction, diction is in no sense a judicial act; ; and, this being so, a refusal of a for it rests upon a disclaimer of the court to take jurisdiction is no more judicial function. The court has than error and, like any other error, neither heard nor

determined. is to be corrected on appeal. Of all Neither the law nor the facts are the text-writers, Mr. Bailey in his affected in the slightest degree, and, work on Jurisdiction is the only appeals being for the correction of one who seems to lend sanction to

judicial errors, errors of discretion, this theory. He says: “Some or of the judicial mind, it follows courts make the distinction that that one entitled should have resort where the court entertains jurisdic- to some method by which the court tion then its decision cannot be con- can be set in motion. The court has trolled, but where it refuses to done nothing which is either judiexercise jurisdiction it may be com- cial or discretionary. It has repelled. On first impression it would fused to do either. Its judgment is seem that where the jurisdiction of nullus fillius, a void thing, binding the court is invoked by petition or

no one, a legal nonentity. other proceeding, and the court en- “Where an action is dismissed on tertains the proceeding to the extent the sole ground that the court has of acting upon it and determining no jurisdiction of the subject-matits sufficiency or insufficiency, it has ter of the suit,

this is, of assumed jurisdiction, and, though course, no adjudication of the merits determination may have been its and no bar to another action for erroneous, this is but an error of the same cause." Black, Judgm. 2d

' judgment, that it has exercised its

ed. § 713. judgment and discretion, which are

In Cowan v. Fulton, 23 Gratt. 579, not subject to review by mandamus, the court denied its jurisdiction upand that ordinarily such error may on the ground that the act relied on be corrected upon appeal or by writ to sustain it was unconstitutional. of error. Where, however, such de- It was held that a writ should istermination cannot be reviewed, sue, the court saying: then the writ might issue to prevent “But it is insisted that, conceding a failure of justice." Bailey, Juris- the law referred to to be constitudiction, $ 594.

tional, still the judgment of the cirThis he advances without author- cuit court, dismissing the cause for ity or color of authority. While want of jurisdiction and striking it citation of

of authority would not from the docket, is a final judgment in the cause; and, the term at which properly by way of mandamus. this supposed judgment was ren- Chicago & A. R. Co. v. Wiswall, 23 dered having passed by, it is not Wall. 507, 23 L. ed. 103. This deci. competent to the appellate court, by sion was afterwards overcome by a mandamus, to compel in effect a re- statute which gave a right of re. hearing of the cause.

view by writ of error. A later stat"If the premises were true, the ute took away both remedies and conclusion might perhaps be con- made the order final. The case ceded; for it certainly is not regu- nevertheless stands as an authority lar nor proper to use the writ of upon the principle involved. It is a mandamus to review or rehear the judicial expression as distinguished judgments of a subordinate court; from the later expressions of the but the fallacy of the argument legislative body. consists in the assumption that In People ex rel. Robison v. there was a judgment in the cause; Swift, 59 Mich. 529, 26 N. W. 694, whereas the court positively and the lower court had quashed certain unequivocally refused to pass on indictments under the mistaken noit at all, either 'to review, reverse, tion that it had no jurisdiction. It or affirm the judgment,' and merely was contended that a writ of error directed 'that the cause be dismissed was the proper remedy. Here that and stricken from the docket.'

docket. appeal is the proper remedy. So It was a simple refusal to hear and that we have the same case, for the decide the case; and, this court hav- office of the two remedies is the ing held that no appeal lies from same, to reverse, modify, or affirm. such refusal, it is exactly the case The court said: “Judgment on a to which the highly remedial writ writ of error in such a case would of mandamus is most frequently ap- merely vacate the order to quash, plied, in order to prevent a defect and while, no doubt, the recorder's or failure of justice.

court would in such case proceed, "Original jurisdiction to award yet the real purpose of this appliwrits of mandamus upon these cation is to speed the trial, and a principles of the common law has

mandamus seems more fitting than been conferred on this court by the

a writ of error, where that duty Constitution and laws of the state; would be inferred rather than exand in accordance therewith we

pressed." say to the judge of the circuit court of Pulaski that he has the constitu- borough and counsel reported in

The dialogue between Lord Ellentional power to hear and finally dis

Rex v. Justices of Kent, 14 East, pose of the cause referred to, as by 395, 104 Eng. Reprint, 653, is of inan appellate court; and that it is

terest: his duty so to do." It is the rule in the Federal courts. If the justices

“Lord Ellenborough, Ch. J. . If the justices had rejected the

' that every party has a right to a judgment of the court, and that the application in the exercise of the dis

cretion vested in them by the legiswrit will issue in a case where an inferior court has improperly dis- lature, this court would not intermissed a cause under a disclaimer the ground now stated, they had no

fere; but if they had rejected it on

, of power to entertain jurisdiction

power to grant it; the court would of the subject-matter, and the case

interfere so far as to set the juriswill be reinstated with instructions diction of the magistrates in moto try and determine. Ex parte tion, by directing them to hear and Bradstreet, 7 Pet. 647, 8 L. ed. 815. determine upon the application. It is also held that a refusal of a The court therefore granted a rule court to take jurisdiction, it having to shew cause, etc. jurisdiction, is not a final judgment "Park, Taddy, and Berens now in the sense which authorizes a shewed cause against the rule, and writ of error, and the remedy is first said that the justices in ses

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