DISSENTING OPINION. A sufficient statement of the allegations made in the petition for a writ of prohibition is given in the prevailing opinion, and an adequate statement of the allegations made in the action sought to be prohibited is made in the dissenting opinion of Martin, C.J.
The authority of this court to issue such a writ is circumscribed by § 1244 Burns 1926, Acts 1881 p. 240, and provides as follows. "Writs of prohibition may issue out of the Supreme Court to such circuit, superior and criminal courts respectively to restrain and confine such circuit, superior and criminal courts respectively to their respective lawful jurisdiction." (Our italics.)
The Legislature saw fit to limit the power of the Supreme Court to issue the extraordinary writ of prohibition to the one cause named in the statute, and on seeking to have the court exercise such extraordinary power must bring itself clearly within the terms of the statute. Town of Windfall City v. State, ex rel. (1909), 172 Ind. 302, 88 N.E. 505.
The important question therefore is presented: Is this proceeding brought for the purpose of restraining andconfining the superior court of Marion County to its lawful jurisdiction? I do not think it is. The Marion Superior Court was established by the act of the Legislature in 1879. See Acts 1879 p. 120, § 1522 Burns 1926. By § 1536 Burns 1926, the jurisdiction thereof is set out. *Page 614 By this statute the superior court of Marion County is given concurrent jurisdiction with the circuit court, except in certain cases, not here material. The jurisdiction of circuit courts is defined by § 1376 Burns 1926. Section 1300 Burns 1926 provides: "A receiver may be appointed by the court, or the judge thereof in vacation, in the following cases: . . . Third. In all actions when it is shown that the property, fund, or rents and profits in controversy is in danger of being lost, removed or materially injured. . . . Fifth. When a corporation has been dissolved, or is in imminent danger of insolvency, or has forfeited its corporate rights. . . . Seventh. And in such other cases as may be provided by law; or where, in the discretion of the court, or the judge thereof in vacation, it may be necessary to secure ample justice to the parties."
There can be no question but that respondents under the allegations of their complaint, if supported by sufficient evidence, are entitled to the appointment of a receiver, unless their right to apply for a receiver has been taken away from them by § 3965 Burns Supp. 1929, Acts 1929 p. 495. We have mentioned the above provisions of this statute for the purpose of showing that the superior court of Marion County has jurisdiction of the general subject-matter of appointing receivers. It is not controverted, however, that the superior court of Marion County does not have jurisdiction over the general subject-matter of the appointment of receivers. If the bank commissioner of Indiana should conclude under the authority of the act of 1929 above cited that a receiver should be appointed for the relator herein, he would make his application to the superior or circuit court of Marion County, in the very court where this application for a receiver is now pending. It has been decided many times by this court that jurisdiction of the subject-matter is the power to hear and determine cases *Page 615 of the general class to which the proceedings then before the court belong. Daniels, Admx., v. Bruce (1911), 176 Ind. 151, 95 N.E. 569; 11 Cyc. 669; 17 Am. Eng. Ency. Law (2d ed.) 1060;State, ex rel., v. Wolever (1891), 127 Ind. 306, 26 N.E. 762;Chicago, etc., R. Co. v. Sutton (1892), 130 Ind. 405, 30 N.E. 291; Jones v. Cullen (1895), 142 Ind. 335, 40 N.E. 124;Gold v. Pittsburgh, etc., R. Co. (1899), 153 Ind. 232, 53 N.E. 285; Yates v. Lansing (1810), 5 Johns. (N.Y.) 282;Jackson v. Smith (1889), 120 Ind. 520, 522, 22 N.E. 431;McCoy v. Able (1891), 131 Ind. 417, 420, 30 N.E. 528, 31 N.E. 453.
Inasmuch as the superior court of Marion County has jurisdiction over the general subject-matter of appointing receivers, it has jurisdiction over the subject-matter in the instant case. (See cases above cited.) If the court has jurisdiction over the subject-matter here in controversy and has acquired jurisdiction over the parties, then its judgment would not be void, and if not void there can be no collateral attack on the proceeding or judgment. If there is no jurisdiction over the subject-matter, the judgment would be void and subject to collateral attack. Turner v. Conkey (1892), 132 Ind. 250, 31 N.E. 777, 17 L.R.A. 509, 32 Am. St. 251; Gold v. Pittsburgh,etc., R. Co., supra; Todd v. Crail (1906), 167 Ind. 55, 77 N.E. 402; McLeod v. Receveur (1896), 71 Fed. 455, 458.
There is no dispute here, but that the superior court of Marion County has obtained jurisdiction over the relator herein. The real question in this case, therefore, is not whether the court of Marion County has jurisdiction of the subject-matter of the action, but rather, whether the jurisdiction of the superior court of Marion County has been invoked by the proper party. My understanding is that relator contends that a creditor has no authority, under § 3965 Burns Supp. 1929, to bring an action for the appointment of a receiver of a bank in voluntary liquidation. But that the exclusive *Page 616 right is given by said statute to the Bank Commissioner, and that he is the only one who can invoke the jurisdiction of the Marion Superior Court in this case.
If this is the correct analysis of the question presented, relator is not entitled to a writ of prohibition. In the case ofState, ex rel., v. Gleason (1918), 187 Ind. 297, 119 N.E. 9, this language was used: "If a court has jurisdiction of the subject-matter of an action and has acquired jurisdiction of the parties, it has power to determine whether or not its jurisdiction is properly invoked in a proceeding before it. An erroneous decision of such question does not render its subsequent proceedings therein void as being without jurisdiction. An order, decree or judgment based on such proceedings might be reversed as erroneous, but it could not be collaterally attacked as void. . . . In such case the remedy is by appeal."
It is apparent, therefore, that the object of the petition herein for a writ of prohibition is not to restrain the Marion Superior Court to its respective jurisdiction, but for the purpose of having this court determine whether the jurisdiction of the Marion Superior Court has been invoked by a proper party; whether or not the right conferred upon the Bank Commissioner of Indiana, by § 3965 Burns Supp. 1929, is exclusive. As the Legislature has not seen fit to authorize the Supreme Court to issue writs of prohibition for that purpose, it is my opinion that relator has not brought itself within the provisions of the law authorizing the Supreme Court to issue such a writ. Should the superior court of Marion County erroneously decide the question as to whether its jurisdiction has been properly invoked (and we have no right to assume that it will, but on the contrary we assume that it will decide correctly), the Legislature has provided for an appeal by the party aggrieved by whatever action the court may take. *Page 617 Section 1302 Burns 1926 provides: "In all cases hereafter commenced or now pending in any of the courts of this state, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the Supreme Court, without awaiting the final determination of such case," etc.
The legitimate scope of a writ of prohibition is to keep inferior courts within the limits of the jurisdiction conferred on them by law; to prevent them from encroaching on the jurisdiction of other tribunals. Board, etc., v. Spitler (1859), 13 Ind. 235; State, ex rel., v. Gleason, supra.
The power to issue the writ should not be used to take the place of appellate jurisdiction or where another remedy exists.State, ex rel., v. Superior Court (1897), 17 Wn. 12, 48 P. 741, 61 Am. St. 893; Wolcott v. Wells (1890), 21 Nev. 47, 24 P. 367, 9 L.R.A. 59, 37 Am. St. 478. Neither is this court authorized to issue a writ because it might be afraid the lower court will erroneously decide the question presented to it. Applying the principles here set out, the jurisdiction of the Marion Superior Court being established, prohibition will not be employed to prevent an erroneous exercise of jurisdiction.
Having concluded that this court should not issue the writ of prohibition asked by relator, upon the facts of this case, for the reasons already stated the question as to whether the Bank Commissioner of Indiana has been given the exclusive right to invoke the jurisdiction of the Marion Superior Court, cannot be presented in this action, but is a proper question to be presented on an appeal.
It follows that the temporary writ of prohibition should be dissolved. *Page 618