(166 Ky. 622, 179 S. IV. 592.) aside the judgment by default? If v. Superior Ct. 145 Cal. 42, 78 Pac. it did not have jurisdiction to vacate 467; People ex rel. Sayer v. Garnett, and set aside the default judgment, 130 Ill. 340, 23 N. E. 331; State the writ of prohibition should have ex rel. Grunewald v. Judge of Ct. of been granted; on the other hand, Appeals, 105 La. 217, 29 So. 816; if it did have jurisdiction, the writ State ex rel. Hyatt v. Smith, 105 should be denied. If the county Mo. 6, 16 S. W. 1052; Nevada C. R. court had power to vacate the judg- Co. v. District Ct. 21 Nev. 409, 32 ment, it is wholly immaterial Pac. 673: Com. v. Judges of Comwhether the reasons for so doing mon Pleas, 3 Binn. 273; Re Key, 189 were sufficient or not; and so we U. S. 84, 47 L. ed. 720, 23 Sup. Ct. will not inquire into the sufficiency Rep. 624; Re Morrison, 147 U. S. of the reason, as a writ of prohibi- 14, 37 L. ed. 60, 13 Sup. Ct. Rep. tion will not lie to restrain an in- 246. In most of the states, howferior tribunal from acting within ever, the doctrine is, as held in this its jurisdiction, however erroneous jurisdiction, that if an inferior triits action may be." Goldsmith v. bunal has a discretion and proceeds Owen, 95 Ky. 420, 26 S. W. 8; Louis- to exercise it, its discretion cannot ville Sav. Loan & Bldg. Asso. v. be controlled by mandamus; but if Harbeson, 21 Ky. L. Rep. 278, 51 it has a discretion and refuses to S. W. 787; Weaver v. Toney, 107 exercise it, it can be compelled to Ky. 426, 50 L.R.A. 105, 54 S. W. do so, though not in any particular 732; Galbraith v. Williams, 106 Ky. direction. 431, 50 S. W. 686; Schobarg v. Man- It is insisted for the plaintiff that son, 110 Ky. 483, 61 S. W. 999; she is entitled to the mandamus Carter County v. Mobley, 150 Ky. sought on the ground that there is 482, 150 S. W. 497.

no other adequate means of relief We do not overlook the fact that open to her. This ground of relief in some jurisdictions it has been has so frequently been recognized held that where a court declines in this jurisdiction, in applications jurisdiction by mistake of law, er

for the writ of prohibition, that it roneously deciding as a matter of

may be said to be a well-established law, and not as a decision upon the

rule that the writ of prohibition facts, that it has no jurisdiction, may be issued by and either declines to proceed or

the circuit court Prohibitiondisposes of the case, the general against an inferior rule has been announced that a man

court, or by the appellate court damus to proceed will lie from any

against a circuit court, where the higher court having supervisory inferior or circuit court is attemptjurisdiction, unless there is a specif. ing to act out of its jurisdiction, or ic and adequate remedy by appeal where the writ of prohibition is the or writ of error. But in so far as only adequate remedy to which the we have been enabled to discover, party applying therefor can resort. it has never been held that manda- Cullins v. Williams, 156 Ky. 57, 160 mus will issue to review the deci- S. W. 733; Arnold v. Shields, 5 Dana, sion of a lower court which has 18, 30 Am. Dec. 669; Pennington refused jurisdiction after determi- v. Woolfolk, 79 Ky. 13; Newport nation of the question of fact. In News & M. Valley Co. v. McBrayer, some of the cases a distinction is 15 Ky. L. Rep. 399; Clark County made between a refusal to take Ct. v. Warner, 116 Ky. 801, 76 S. W. jurisdiction ab initio and a determi- 828; McCann v. Louisville, 23 Ky. nation that there is no jurisdiction, L. Rep. 558, 63 S. W. 446; Rush v. it being held that where the court Denhardt, 138 Ky. 238, 127 S. W. has acted and judicially determined 785, Ann. Cas. 1912A, 1199. that it has no jurisdiction, its deter- In the cases relied on by the mination cannot be reviewed except plaintiff, no such state of facts on appeal or writ of error. Cahill as here presented will be found.

when lies.

That of Equitable L. Ins. Co. v. time occupied in the settlement of Hardin, 166 Ky. 53, 178 S. W. 1155, questions that could be brought bedeals wholly with the writ of prohi- fore us in the regular way by appeal. bition, and the writ was granted Inferior courts would be obstructed because the wrong complained of in the hearing and disposal of cases, would have resulted in irreparable and much confusion and uncertainty injury to the plaintiff, and there would follow.' was no other adequate remedy to "In the case before us the only elewhich he could have resorted. ment entering into the charge that

In Carey v. Sampson, 150 Ky plaintiff has no adequate remedy is 460, 150 S. W. 531, Carey sought the fact that no appeal will lie from from this court a writ of prohibi- the judgment which the circuit tion to prevent Sampson, judge of judge will render against him, bethe circuit court, from trying him cause the fine will be for an amount under an indictment for practising not within the jurisdiction of this medicine without a license, the court. The case, therefore, is on all punishment for which offense is a fours with that of the Standard Oil fine not exceeding $50. The grounds Co.v. Linn, 17 Ky. L. Rep. 832, 32 S. chiefly urged by Carey for the writ W. 932, where the Oil Company, were that, as Sampson had said in having been proceeded against under advance of a trial that he intended sixty-five separate indictments for to find him guilty and would fine buying and receiving empty coal-oil him, and there could be no appeal barrels without having first erased from the maximum fine to be as- therefrom the inspector's brand, sessed against him, in the absence which had been placed on them, as of the writ of prohibition asked, he required by law, applied to this court would be left without any adequate for a writ of prohibition to arrest remedy. In denying the writ we the proceedings. In overruling the held that the fact that no appeal is application, this

application, this court, speaking given by law from the judgment through Chief Justice Pryor, said: of an inferior court cannot affect the "The basis of the motion rests upon question of the propriety of the the ground that his decision may be court of appeals granting a writ of adverse to the defendant, and as the prohibition, since the legislative de- fine is for an amount not within the partment of the state has the power jurisdiction of this court, no appeal of limiting the jurisdiction of this can be prosecuted from his judgcourt as to appeals; the right of ap- ment. It has long been held, and, in peal being not an inherent right, but fact, no ruling to the contrary can be one that may be granted as a matter found, that such a writ issued only of grace, or withheld by the legisla- to prevent the inferior tribunal from ture, in the exercise of its discretion. exercising, or attempting to exerIn the opinion it is, among other cise, a jurisdiction that does not bethings, said:

long to it. .. Section 110 of the "In determining whether there is Constitution provides that this court an adequate remedy, each case must “shall have power to issue such be adjudged upon its merits. In writs as may be necessary to give it Rush v. Denhardt, 138 Ky. 245, 127 general control of inferior jurisdicS. W. 787, Ann. Cas. 1912A, 1199, tions." Under this provision it is this court said: 'If we should once claimed this court may rightfully lay down the rule that application by exercise the power of determining, original proceeding might be made not only the question of jurisdiction to us to stay the hand of the inferior in the inferior court, but may go so jurisdictions, whenever in the opin- far as to determine questions that ion of counsel the ruling was preju- necessarily belong to courts of origdicial, although it might not leave inal jurisdiction, and over which the complainant without adequate they have complete control, subject remedy, we would have much of our to an appeal to this court where an

.

(166 Ky. 622, 179 8. W. 598.) appeal is allowed. It is not con- with by the writ of mandamus; nor tended the circuit court is without can the decision itself be reviewed by jurisdiction to try these indictments, this court on an application for such and it must be conceded it has full writ. and complete power to determine all If, as claimed by the plaintiff, the questions pertaining to the trial, circuit judge erred in the decision made by counsel on either side. rendered, that fact would not auWith such a latitudinous construc- thorize the granting of the mandation given this provision of the Con- mus; or if, as further claimed by her, stitution as we are asked to give, she were without right of appeal this court would convert itself into a from the decision, the granting of tribunal of original jurisdiction, and the mandamus would be equally unin every case, as to the validity of in. authorized; as in either event we dictments, or of the sufficiency of would be confronted with the fact any pleading in a civil action, this that the circuit judge had a discrecourt could interfere and direct the tion over the subject-matter ininferior court as to what the judg. volved in the question decided, and ment should be. If the statute im

If the statute im- that, in making the decision, he exposing the penalty in such cases has ercised such discretion, for which been repealed, the court below has reasons no power exists in this court the jurisdiction to so decide, or, if to compel, by mandamus, a different

, the indictment or proceeding is de decision. fective, the same power exists, so We are unconvinced of the soundthat there can be no reason for this ness of the plaintiff's contention court to interfere with the exercise that she has no other adequate of the rightful jurisdiction of any remedy than the one here applied court except in cases where appeals for. If, after the quashing of the are prosecuted, and it is only in cases return on the summons, she had adwhere the inferior tribunal is be- vised the judge of the circuit court yond the bounds of its jurisdiction that she proposed taking no further that this writ should go. The fact step in the case, he doubtless would that no appeal is given cannot affect have entered judgment dismissing the question, because the legislative the action for want of jurisdiction of department of the state has the the person of the defendant, from power of limiting the jurisdiction of which judgment, upon reserving the this court as to appeals.'

necessary exception, she could have Here the question whether the taken an appeal to this court, and plaintiff, in case of a refusal of the thereby obtained a review of the mandamus, has any other adequate rulings of the circuit judge commeans of relief, cannot be consid- plained of. ered, for there was a hearing of Our conclusion that the plaintiff proof by the circuit court and deci- has not shown herself entitled to the sion that the service of process was writ of mandamus asked renders unnot sufficient to bring the Old Do- necessary and, indeed, improper the minion Steamship Company before decision of

decision of the second question the court. If correct in this decision, urged by her, viz., whether the serythe court could not proceed to try ice of summons was legally had upon the case, owing to its not having ob- the Old Dominion Steamship Comtained jurisdiction of the person of pany so that question is not passed the defendant. The question de- on. termined was jurisdictional, in the For the reasons indicated, the dedecision of which there was a com- murrer to the petition is sustained, plete exercise of the discretion of the the writ of mandamus refused, and court, which cannot be interfered the action dismissed.

ANNOTATION.

Mandamus to compel a court to take jurisdiction of a cause that it has errone

ously dismissed for supposed insufficiency or lack of service.

On mandamus to compel court to as- tation here, except so far as it is supsume or exercise jurisdiction where ported by the cases falling within the it has erroneously dismissed the cause, subject of the note. Some cases in or refused to proceed on the ground of which the cause was dismissed for supposed lack of jurisdiction, see note insufficiency or lack of service unto State ex rel. Martin v. Superior Ct. doubtedly fall within this principle. ante, 582.

The decision in the reported case On inadequacy of remedy by' appeal (SPECKERT V. RAY, ante, 603), if it or writ of error as affecting right to were based upon the theory that the mandamus to inferior court, see note rule does not apply where the case has to Ketchum Coal Co. v. District Ct. been dismissed for lack of jurisdicpost, 632,

tion of the person, as distinguished On mandamus to compel court to from the subject-matter, would be reinstate or proceed with the hearing supported arguendo by the decision of an appeal that it has erroneously in State ex rel. Martin v. Superior Ct. dismissed, see note to Floyd v. Sixth ante, 572. And so far as it may be Judicial Dist. Ct. post, 655.

said to be based upon the fact that the The dismissal of a cause for insuffi- inferior court had determined facts as ciency or lack of service is equivalent the basis of its decision, as distinto a dismissal for lack of jurisdiction; guished from questions of law, it is and so an application for a writ of supported by a few cases cited in the mandamus, where a court has mistak- note to that case, especially Reg. V. enly held that the service was insuffi- Leicester Freemen (1850) 15 Q. B. cient, may be predicated upon the 671, 117 Eng. Reprint, 613, 14 Jur. 914, broad principle that mandamus will 19 L. J. Q. B. N. S. 413. And, if the lie where an inferior court, having court intended to base the decision jurisdiction, refuses to proceed, or dis- upon the ab initio theory, it is supmisses the cause upon the ground that ported by another small group of it lacks jurisdiction. On this broad cases there cited. So far as the deciprinciple, see note to State ex rel. Mar- sion is based upon the fact that there tin v. Superior Ct. supra. Upon such could have been an appeal by proper predication it is necessary to consid- procedure, it is supported by State er whether that principle applies to ex rel. Piper v. Superior Ct. (1906) 45 cases where the dismissal was for lack Wash. 196, 87 Pac. 1120, where the of jurisdiction of the person, as well trial court refused to proceed with a as to cases where the dismissal was cause brought for the annulment of a for lack of jurisdiction of the subject- void marriage, and held that it had matter; also, whether the particular no jurisdiction for the reason that case falls within any of the limita- service was made by publication intions or conditions imposed upon the stead of by personal service, and the rule, as discussed in the note referred higher court refused a mandamus to to.

compel it to proceed, stating that if There is also a well-established the court had been asked to finally disprinciple that, in many circumstances, pose of the case, and had dismissed mandamus will lie where a cause has it, relator would have had an adequate been dismissed upon an erroneous de- remedy by appeal. The same holding, termination of a matter preliminary to on practically the same facts, is found a hearing upon the merits, which in Stevens v. Wayne Circuit Judge operates to take a cause out of the (1910) 161 Mich. 130, 125 N. W. 695. rule that the discretion of the court Where a court erroneously holds will not be controlled by mandamus. that the service of summons or notice This principle is too broad for anno- is insufficient, and sustains a motion

9

to quash the summons, mandamus 106 La. 425, 31 S. W. 57, in which the will lie to compel it to take jurisdic- decision is contrary to that in the tion and proceed in the exercise there- Connolly Case, such decisions are not of, since this is a preliminary ques- based upon any theory that a holding tion of jurisdiction, to which the rule that the pleadings are insufficient is that the discretion of the court can- equivalent to holding that the court not be controlled by mandamus does has no jurisdiction. not apply. Ex parte Schollenberger In State v. Snow Steam Pump Works (1878) 96 U. S. 369, 24 L. ed. 853; Re v. Homer (1913) 249 Mo. 58, 155 S. W. Hohorst (1893) 150 U. S. 653, 37 L. 405, the court said: “But aside from ed. 1211, 14 Sup. Ct. Rep. 221; Re Con- this there is much respectable authornoway (1900) 178 U. S. 421, 44 L. ed. ity to the effect that mandamus is the 1134,20 Sup. Ct. Rep. 951 (and see also only proper remedy, where a circuit Rose's Notes to these cases); Hill v. court refused to proceed with a case Superior Ct. (1911) 15 Cal. App. 307, because the court was of opinion that 114 Pac. 805; Klokke Invest. Co. v. it did not have jurisdiction of the Superior Ct. (1919) - Cal. App. - cause, or of the parties to the cause. 179 Pac. 728; Hill v. Morgan (1904) 9 In the circuit court case, the trial Idaho, 718, 76 Pac. 323; People ex rel. court refused to entertain jurisdiction Hosie V. Judge of Wayne Circuit Ct. and proceed with the case upon a pre(1871) 22 Mich. 493; People ex rel. liminary objection to the return of Comstock v. Judge of Wayne Circuit service to the process.

In the very Ct. (1874) 30 Mich. 98 (defect in sum- early case of Castello v. St. Louis Cirmons); Brown V. Pontiac Min. Co. cuit Ct. (1859) 28 Mo. 274, we had (1896) 105 Mich. 653, 63 N. W. 1000; up a very similar question. The quesCastello v. St. Louis Circuit Ct. (1859) tion there was whether a notice of 28 Mo. 259 (a notice); State ex rel. contest in a contested election case Snow Steam Pump Works v. Homer was sufficient to give the circuit court (1913) 249 Mo. 58, 155 S. W. 405; jurisdiction to hear and determine the State ex rel. Newell v. Cave (1917) case upon its merits. The circuit 272 Mo. 653, 199 S. W. 1014, writ of court held the notice insufficient, and error dismissed in (1918) 246 U. S. refused to proceed further with the 650, 62 L. ed. 921, 38 Sup. Ct. Rep. case. This court issued its alternative 334; State ex rel. Keane V. Murphy writ, and then proceeded to determine (1885) 19 Nev. 89, 6 Pac. 840; Reg. v.

whether or not the trial court was Leicester Freemen (1850) 15 Q. B. right or wrong in refusing to proceed 671, 117 Eng. Reprint, 613, 14 Jur. 914,

further. We held that the trial court 19 L. J. Q. B. N. S. 413 (where deci

was right, and that the notice was insion was based on law; contra, where

sufficient, and denied the peremptory

writ for that reason; based on fact).

but in the The case of Hill v. Morgan (1904)

course of the opinion, we thus spoke 9 Idaho, 718, 76 Pac. 323, supra, is

upon the question in issue here: cited in Connolly v. Woods (1907) 13

'Upon the facts disclosed in the petiIdaho, 591, 92 Pac, 573, where the

tion in this case for a mandamus upon court distinguishes the two cases and

the circuit court, a majority of this holds that the doctrine of the former

court determined that a conditional case has no application, where the mandamus should be awarded, and it court has passed upon the sufficiency

was accordingly so ordered. This of the pleadings and disposed of the determination was based upon the case. In such case it has jurisdiction, principle that where an inferior judiand exercises it, while in the Hill Case' cial tribunal declines to hear a case it was the sufficiency of the service upon what is termed a preliminary that was in question. But the ques- objection, and that objection is puretion decided in the Connolly Case is ly a matter of law, a mandamus will not within the scope of this note. Al- go, if the inferior court as misconthough there are some cases, such as strued the law. The cases of Rex v. State ex rel. Sorrel v. Foster (1902) Justices of West Riding (1833) 5