I am not in accord with Mr. Justice SHARPE'S conclusion that the writ of prohibition should issue. He holds that the lack of jurisdiction in the court below clearly appeared from the bill of complaint. Such question of jurisdiction could have and should have been raised in the court below.
From the beginning of our decisions it has been held that the writ of prohibition should not be used to restrain any action of inferior courts which can be reviewed by any of the ordinary methods. People, ex rel. Campau, v. Wayne Circuit Court,11 Mich. 393 (83 Am. Dec. 754).
In Hudson v. Judge of Superior Court, 42 Mich. 239, we held, p. 248:
"The writ of prohibition is a remedy provided by the common law to prevent the encroachment of jurisdiction. It is a proper remedy in cases where the court exceeds the bounds of its jurisdiction, or takes cognizance of matters not arising within its jurisdiction. It can only be interposed in a clear case of excess of jurisdiction, and may lie to a part and not to the whole. It simply goes to the excess of jurisdiction, and the application for the writ may be made by either the plaintiff or the defendant in the case, or if more than one, by either where the excess of jurisdiction affects him. It can only be resorted to where other remedies are ineffectual to meet the exigencies of the case. It is a preventive rather than a remedial process, and cannot, therefore, take the place of a writ of error or other mode of review. It must also appear that the person applying for the writ has made application in vain for relief to the court against which the writ is asked. The writ is not granted as a matter of strict right, but rests in a sound judicial discretion, to be granted or not according to the peculiar circumstances *Page 403 of each particular case when presented. 8 Bacon's Abridgment, tit. "Prohibition"; 3 Blackstone's Commentaries, p. 111; Appo v. People, 20 N.Y. 531; People, ex rel. Karr, v. Seward, 7 Wend. (N.Y.) 518; Arnold v. Shields, 5 Dana (35 Ky.), 18, 21 (30 Am. Dec. 669); Washburn v. Phillips, 2 Met. (43 Mass.) 296, 299; Ex parte Hamilton, 51 Ala. 62; Blackburn, Ex parte, 5 Pike (5 Ark.), 21, 22; High, Extraordinary Legal Remedies, §§ 773, 765."
In Rogers v. Wayne Circuit Judge, 243 Mich. 703, Mr. Justice FELLOWS, speaking for the Court, followed these two cases, and held that prohibition will not be granted where the petitioner had an adequate remedy by some other proceeding. And he cited the following cases of this Court as his further authority: Nichols v. Judge of Superior Court, 130 Mich. 187;Gorman v. Calhoun Circuit Judge, 140 Mich. 230; Port HuronSavings Bank v. St. Clair Circuit Judge, 147 Mich. 551;Triangle Land Co. v. Auditor General, 172 Mich. 289;Consumers Power Co. v. Iosco Circuit Judge, 210 Mich. 572.
This was also the holding in Nichols v. Judge of SuperiorCourt, supra, and in Warnshuis v. State Board of Registrationin Medicine, 285 Mich. 699, both cited by Mr. Justice SHARPE, and was also followed in Boyce v. Bay Circuit Judge,274 Mich. 575.
The case of Scott v. Chambers, 62 Mich. 532, cited by Mr. Justice SHARPE, has no application to the instant case. There the circuit judge undertook to punish the relators for violating an injunction in another cause. The order required relators to pay into court $6,100 within 40 days or give bonds to produce or stand committed indefinitely. There had been a reference to a circuit court commissioner but no proofs were taken. The reference was set aside and without further proofs the contempt punishment order was entered. The granting of the writ *Page 404 in this case of Scott v. Chambers is not authority for the position taken by Mr. Justice SHARPE.
In the instant case the question of jurisdiction could and should have been raised in the court below. Here the relator did not make application in vain for relief to the court against which the writ is asked. The writ of prohibition should be denied.
A public question being involved, no costs are allowed.
STARR and BUSHNELL, JJ., concurred with CHANDLER, J.