The opinion of the court was delivered by
Scott, C. J.In this matter, upon the ex parte application of the relator alleging facts from which it appeared that the lower court was about to exceed its jurisdiction in bringing a certain action — of The J. F. Hart Lumber Company v. Wyatt J. Rucker—to trial before a jury of persons who were disqualified to act, in consequence of having served as jurors at another term of court within one year preceding said time, and as there seemed to be no other adequate remedy, and being willing that the matter should be brought before us for determination, an alternative writ of prohibition was directed to issue, returnable on the 15th day of January, 1897. Service was had and a return made by the respondent, from which it appears that said objectionable jury was discharged and a new jury called and the cause tried before the return day of the writ.
The relator moved to strike this return on the ground that the respondent had proceeded in violation of the alternative writ in trying said cause at all before the matter complained of was finally heard in this court. *349There is a contention as to what relief the plaintiff is entitled to now under such circumstances, itbeing contended upon one side that the court should order such trial set aside and place the parties m statu quo, and on the other that, the trial having taken place, no relief can be given in this proceeding.
But the first point to determine is, was there a violation of the writ? It is clear that the only matter sought to be prohibited was the trying of the cause before the said illegal jury. It is true, some complaint was made in the application of the relator that the court had set the cause for trial in violation of one of the rules of said court. But it goes without saying that this court would not interfere by the extraordinary remedy of prohibition in a mere question of practice concerning a rule of the lower court; nor did the alternative writ purport to do so. The action of the respondent in discharging the jury complained of must be regarded as a confession, in so far as this proceeding is concerned, that said jury was an illegal one, and that the trial of the cause before said jury was properly restrained. The only purpose of such an alternative writ is to cause the court or judge to forego or abandon the contemplated action or proceeding complained of, or otherwise to show cause why the same should be permitted. Consequently, two courses were open to the respondent; one to refrain from the alleged illegal action; the other to contest the question of its illegality, and the former was chosen.
However, it is contended by the relator that this writ in terms absolutely prohibited the court from trying the cause at all until the return day. But we do not so regard it. If it did so absolutely prohibit the court from trying' the cause over which it had juris*350diction, it was improper in form and not appropiate to the relief to which the relator was entitled, and would be quashed and the proceeding set aside upon a proper application, although this court would not permit the lower court to proceed in violation of its terms while it remained in force, as the remedy would be to apply here for a modification. But the fair construction of the writ, especially considering the ground upon which it was based, recited therein, is that it was only intended to, and only did, restrain the court from proceeding to try said cause before the alleged illegal jury aforesaid, until a hearing could be had and the matter determined. The lower court saw fit to comply with the alternative writ by discharging such jury and calling another. For that reason the final writ should not issue, but the error being confessed, the relator will recover its costs against the defendant in the principal action, he being the interested party.
Reavis, Gordon and Dunbar, JJ., concur.