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(166 Ky. 622, 179 S. W. 592.)

aside the judgment by default? If it did not have jurisdiction to vacaté and set aside the default judgment, the writ of prohibition should have been granted; on the other hand, if it did have jurisdiction, the writ should be denied. If the county court had power to vacate the judgment, it is wholly immaterial whether the reasons for so doing were sufficient or not; and so we will not inquire into the sufficiency of the reason, as a writ of prohibition will not lie to restrain an inferior tribunal from acting within its jurisdiction, however erroneous its action may be." Goldsmith v. Owen, 95 Ky. 420, 26 S. W. 8; Louisville Sav. Loan & Bldg. Asso. v. Harbeson, 21 Ky. L. Rep. 278, 51 S. W. 787; Weaver v. Toney, 107 Ky. 426, 50 L.R.A. 105, 54 S. W. 732; Galbraith v. Williams, 106 Ky. 431, 50 S. W. 686; Schobarg v. Manson, 110 Ky. 483, 61 S. W. 999; Carter County v. Mobley, 150 Ky. 482, 150 S. W. 497.

We do not overlook the fact that in some jurisdictions it has been held that where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law, and not as a decision upon the facts, that it has no jurisdiction, and either declines to proceed or disposes of the case, the general rule has been announced that a mandamus to proceed will lie from any higher court having supervisory jurisdiction, unless there is a specific and adequate remedy by appeal or writ of error. But in so far as we have been enabled to discover, it has never been held that mandamus will issue to review the decision of a lower court which has refused jurisdiction after determination of the question of fact. In some of the cases a distinction is made between a refusal to take jurisdiction ab initio and a determination that there is no jurisdiction, it being held that where the court has acted and judicially determined that it has no jurisdiction, its determination cannot be reviewed except on appeal or writ of error. Cahill

v. Superior Ct, 145 Cal. 42, 78 Pac. 467; People ex rel. Sayer v. Garnett, 130 Ill. 340, 23 N. E. 331; State ex rel. Grunewald v. Judge of Ct. of Appeals, 105 La. 217, 29 So. 816; State ex rel. Hyatt v. Smith, 105 Mo. 6, 16 S. W. 1052; Nevada C. R. Co. v. District Ct. 21 Nev. 409, 32 Pac. 673: Com. v. Judges of Common Pleas, 3 Binn. 273; Re Key, 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624; Re Morrison, 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. Rep. 246. In most of the states, however, the doctrine is, as held in this jurisdiction, that if an inferior tribunal has a discretion and proceeds to exercise it, its discretion cannot be controlled by mandamus; but if it has a discretion and refuses to exercise it, it can be compelled to do so, though not in any particular direction.

when lies.

It is insisted for the plaintiff that she is entitled to the mandamus sought on the ground that there is no other adequate means of relief open to her. This ground of relief has so frequently been recognized in this jurisdiction, in applications for the writ of prohibition, that it may be said to be a well-established rule that the writ of prohibition may be issued by the circuit court Prohibitionagainst an inferior court, or by the appellate court against a circuit court, where the inferior or circuit court is attempting to act out of its jurisdiction, or where the writ of prohibition is the only adequate remedy to which the party applying therefor can resort. Cullins v. Williams, 156 Ky. 57, 160 S. W. 733; Arnold v. Shields, 5 Dana, 18, 30 Am. Dec. 669; Pennington v. Woolfolk, 79 Ky. 13; Newport News & M. Valley Co. v. McBrayer, 15 Ky. L. Rep. 399; Clark County Ct. v. Warner, 116 Ky. 801, 76 S. W. 828; McCann v. Louisville, 23 Ky. L. Rep. 558, 63 S. W. 446; Rush v. Denhardt, 138 Ky. 238, 127 S. W. 785, Ann. Cas. 1912A, 1199.

In the cases relied on by the plaintiff, no such state of facts as here presented will be found.

That of Equitable L. Ins. Co. v. Hardin, 166 Ky. 53, 178 S. W. 1155, deals wholly with the writ of prohibition, and the writ was granted because the wrong complained of would have resulted in irreparable injury to the plaintiff, and there was no other adequate remedy to which he could have resorted.

In Carey v. Sampson, 150 Ky. 460, 150 S. W. 531, Carey sought from this court a writ of prohibition to prevent Sampson, judge of the circuit court, from trying him under an indictment for practising medicine without a license, the punishment for which offense is a fine not exceeding $50. The grounds chiefly urged by Carey for the writ were that, as Sampson had said in advance of a trial that he intended to find him guilty and would fine him, and there could be no appeal from the maximum fine to be assessed against him, in the absence of the writ of prohibition asked, he would be left without any adequate remedy. In denying the writ we held that the fact that no appeal is given by law from the judgment of an inferior court cannot affect the question of the propriety of the court of appeals granting a writ of prohibition, since the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals; the right of appeal being not an inherent right, but one that may be granted as a matter of grace, or withheld by the legislature, in the exercise of its discretion. In the opinion it is, among other things, said:

"In determining whether there is an adequate remedy, each case must. be adjudged upon its merits. In Rush v. Denhardt, 138 Ky. 245, 127 S. W. 787, Ann. Cas. 1912A, 1199, this court said: 'If we should once lay down the rule that application by original proceeding might be made to us to stay the hand of the inferior jurisdictions, whenever in the opinion of counsel the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our

time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow.'

"In the case before us the only element entering into the charge that plaintiff has no adequate remedy is the fact that no appeal will lie from the judgment which the circuit judge will render against him, because the fine will be for an amount not within the jurisdiction of this court. The case, therefore, is on all fours with that of the Standard Oil Co. v. Linn, 17 Ky. L. Rep. 832, 32 S. W. 932, where the Oil Company, having been proceeded against under sixty-five separate indictments for buying and receiving empty coal-oil barrels without having first erased therefrom the inspector's brand, which had been placed on them, as required by law, applied to this court for a writ of prohibition to arrest the proceedings. In overruling the application, this court, speaking through Chief Justice Pryor, said: "The basis of the motion rests upon the ground that his decision may be adverse to the defendant, and as the fine is for an amount not within the jurisdiction of this court, no appeal can be prosecuted from his judg ment. It has long been held, and, in fact, no ruling to the contrary can be found, that such a writ issued only to prevent the inferior tribunal from exercising, or attempting to exercise, a jurisdiction that does not belong to it. . . . Section 110 of the Constitution provides that this court "shall have power to issue such writs as may be necessary to give it general control of inferior jurisdictions." Under this provision it is claimed this court may rightfully exercise the power of determining, not only the question of jurisdiction in the inferior court, but may go so far as to determine questions that necessarily belong to courts of original jurisdiction, and over which they have complete control, subject to an appeal to this court where an

(166 Ky. 622, 179 S. W. 598.)

appeal is allowed. It is not contended the circuit court is without jurisdiction to try these indictments, and it must be conceded it has full and complete power to determine all questions pertaining to the trial, made by counsel on either side. With such a latitudinous construction given this provision of the Constitution as we are asked to give, this court would convert itself into a tribunal of original jurisdiction, and in every case, as to the validity of indictments, or of the sufficiency of any pleading in a civil action, this court could interfere and direct the inferior court as to what the judgment should be. If the statute imposing the penalty in such cases has been repealed, the court below has the jurisdiction to so decide, or, if the indictment or proceeding is defective, the same power exists, so that there can be no reason for this court to interfere with the exercise of the rightful jurisdiction of any court except in cases where appeals are prosecuted, and it is only in cases where the inferior tribunal is beyond the bounds of its jurisdiction that this writ should go. The fact that no appeal is given cannot affect the question, because the legislative department of the state has the power of limiting the jurisdiction of this court as to appeals.'

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Here the question whether the plaintiff, in case of a refusal of the mandamus, has any other adequate means of relief, cannot be considered, for there was a hearing of proof by the circuit court and decision that the service of process was not sufficient to bring the Old Dominion Steamship Company before the court. If correct in this decision, the court could not proceed to try the case, owing to its not having obtained jurisdiction of the person of the defendant. The question determined was jurisdictional, in the decision of which there was a complete exercise of the discretion of the court, which cannot be interfered 4 A.L.R.-39.

with by the writ of mandamus; nor can the decision itself be reviewed by this court on an application for such writ.

If, as claimed by the plaintiff, the circuit judge erred in the decision rendered, that fact would not authorize the granting of the mandamus; or if, as further claimed by her, she were without right of appeal from the decision, the granting of the mandamus would be equally unauthorized; as in either event we would be confronted with the fact that the circuit judge had a discretion over the subject-matter involved in the question decided, and that, in making the decision, he exercised such discretion, for which reasons no power exists in this court to compel, by mandamus, a different decision.

We are unconvinced of the soundness of the plaintiff's contention that that she has no other adequate remedy than the one here applied for. If, after the quashing of the return on the summons, she had advised the judge of the circuit court that she proposed taking no further step in the case, he doubtless would have entered judgment dismissing the action for want of jurisdiction of the person of the defendant, from which judgment, upon reserving the necessary exception, she could have taken an appeal to this court, and thereby obtained a review of the rulings of the circuit judge complained of.

Our conclusion that the plaintiff has not shown herself entitled to the writ of mandamus asked renders unnecessary and, indeed, improper the decision of the second question urged by her, viz., whether the service of summons was legally had upon the Old Dominion Steamship Company so that question is not passed


For the reasons indicated, the demurrer to the petition is sustained, the writ of mandamus refused, and the action dismissed.


Mandamus to compel a court to take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency or lack of service.

On mandamus to compel court to assume or exercise jurisdiction where it has erroneously dismissed the cause, or refused to proceed on the ground of supposed lack of jurisdiction, see note to State ex rel. Martin v. Superior Ct. ante, 582.

On inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court, see note to Ketchum Coal Co. v. District Ct. post, 632.

On mandamus to compel court to reinstate or proceed with the hearing of an appeal that it has erroneously dismissed, see note to Floyd v. Sixth Judicial Dist. Ct. post, 655.

The dismissal of a cause for insufficiency or lack of service is equivalent to a dismissal for lack of jurisdiction; and so an application for a writ of mandamus, where a court has mistakenly held that the service was insufficient, may be predicated upon the broad principle that mandamus will lie where an inferior court, having jurisdiction, refuses to proceed, or dismisses the cause upon the ground that it lacks jurisdiction. On this broad principle, see note to State ex rel. Martin v. Superior Ct. supra. Upon such predication it is necessary to consider whether that principle applies to cases where the dismissal was for lack of jurisdiction of the person, as well as to cases where the dismissal was for lack of jurisdiction of the subjectmatter; also, whether the particular case falls within any of the limitations or conditions imposed upon the rule, as discussed in the note referred to.

There is also a well-established principle that, in many circumstances, mandamus will lie where a cause has been dismissed upon an erroneous determination of a matter preliminary to a hearing upon the merits, which operates to take a cause out of the rule that the discretion of the court I will not be controlled by mandamus. This principle is too broad for anno

tation here, except so far as it is supported by the cases falling within the subject of the note. Some cases in which the cause was dismissed for insufficiency or lack of service undoubtedly fall within this principle.

The decision in the reported case (SPECKERT V. RAY, ante, 603), if it were based upon the theory that the rule does not apply where the case has been dismissed for lack of jurisdiction of the person, as distinguished from the subject-matter, would be supported arguendo by the decision in State ex rel. Martin v. Superior Ct. ante, 572. And so far as it may be said to be based upon the fact that the inferior court had determined facts as the basis of its decision, as distinguished from questions of law, it is supported by a few cases cited in the note to that case, especially Reg. v. Leicester Freemen (1850) 15 Q. B. 671, 117 Eng. Reprint, 613, 14 Jur. 914, 19 L. J. Q. B. N. S. 413. And, if the court intended to base the decision upon the ab initio theory, it is supported by another small group of cases there cited. So far as the decision is based upon the fact that there could have been an appeal by proper procedure, it is supported by State ex rel. Piper v. Superior Ct. (1906) 45 Wash. 196, 87 Pac. 1120, where the trial court refused to proceed with a cause brought for the annulment of a void marriage, and held that it had no jurisdiction for the reason that service was made by publication instead of by personal service, and the higher court refused a mandamus to compel it to proceed, stating that if the court had been asked to finally dispose of the case, and had dismissed it, relator would have had an adequate remedy by appeal. The same holding, on practically the same facts, is found in Stevens v. Wayne Circuit Judge (1910) 161 Mich. 130, 125 N. W. 695.

Where a court erroneously holds that the service of summons or notice is insufficient, and sustains a motion

to quash the summons, mandamus will lie to compel it to take jurisdiction and proceed in the exercise thereof, since this is a preliminary question of jurisdiction, to which the rule that the discretion of the court cannot be controlled by mandamus does not apply. Ex parte Schollenberger (1878) 96 U. S. 369, 24 L. ed. 853; Re Hohorst (1893) 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; Re Connoway (1900) 178 U. S. 421, 44 L. ed. 1134, 20 Sup. Ct. Rep. 951 (and see also Rose's Notes to these cases); Hill v. Superior Ct. (1911) 15 Cal. App. 307, 114 Pac. 805; Klokke Invest. Co. v. Superior Ct. (1919) Cal. App. 179 Pac. 728; Hill v. Morgan (1904) 9 Idaho, 718, 76 Pac. 323; People ex rel. Hosie v. Judge of Wayne Circuit Ct. (1871) 22 Mich. 493; People ex rel. Comstock v. Judge of Wayne Circuit Ct. (1874) 30 Mich. 98 (defect in summons); Brown v. Pontiac Min. Co. (1896) 105 Mich. 653, 63 N. W. 1000; Castello v. St. Louis Circuit Ct. (1859) 28 Mo. 259 (a notice); State ex rel. Snow Steam Pump Works v. Homer (1913) 249 Mo. 58, 155 S. W. 405; State ex rel. Newell v. Cave (1917) 272 Mo. 653, 199 S. W. 1014, writ of error dismissed in (1918) 246 U. S. 650, 62 L. ed. 921, 38 Sup. Ct. Rep. 334; State ex rel. Keane v. Murphy (1885) 19 Nev. 89, 6 Pac. 840; Reg. v. Leicester Freemen (1850) 15 Q. B. 671, 117 Eng. Reprint, 613, 14 Jur. 914, 19 L. J. Q. B. N. S. 413 (where decision was based on law; contra, where based on fact).

The case of Hill v. Morgan (1904) 9 Idaho, 718, 76 Pac. 323, supra, is cited in Connolly v. Woods (1907) 13 Idaho, 591, 92 Pac. 573, where the court distinguishes the two cases and holds that the doctrine of the former case has no application, where the court has passed upon the sufficiency of the pleadings and disposed of the case. In such case it has jurisdiction, and exercises it, while in the Hill Case it was the sufficiency of the service that was in question. But the question decided in the Connolly Case is not within the scope of this note. Although there are some cases, such as State ex rel. Sorrel v. Foster (1902)

106 La. 425, 31 S. W. 57, in which the decision is contrary to that in the Connolly Case, such decisions are not based upon any theory that a holding that the pleadings are insufficient is equivalent to holding that the court has no jurisdiction.

In State v. Snow Steam Pump Works v. Homer (1913) 249 Mo. 58, 155 S. W. 405, the court said: "But aside from this there is much respectable authority to the effect that mandamus is the only proper remedy, where a circuit court refused to proceed with a case because the court was of opinion that it did not have jurisdiction of the cause, or of the parties to the cause. In the circuit court case, the trial court refused to entertain jurisdiction and proceed with the case upon a preliminary objection to the return of service to the process. In the very early case of Castello v. St. Louis Circuit Ct. (1859) 28 Mo. 274, we had up a very similar question. The question there was whether a notice of contest in a contested election case was sufficient to give the circuit court jurisdiction to hear and determine the case upon its merits. The circuit court held the notice insufficient, and refused to proceed further with the case. This court issued its alternative writ, and then proceeded to determine whether or not the trial court was right or wrong in refusing to proceed further. We held that the trial court was right, and that the notice was insufficient, and denied the peremptory writ for that reason; but, in the course of the opinion, we thus spoke upon the question in issue here: 'Upon the facts disclosed in the petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of Rex v. Justices of West Riding (1833) 5

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