State ex rel. Feeney v. District Court of the Seventh Judicial District

ROONEY, Justice,

dissenting, in which RAPER, Chief Justice, joins.

I can agree with most of the law set forth both in the majority opinion and in the dissenting opinion of Chief Justice Raper. However, I do not believe such law to be pertinent to the matter before us.

We are presented with two applications for writs of prohibition. They seek an order prohibiting enforcement of a writ of mandamus issued by the District Court of the Seventh Judicial District.1 The object of a writ of prohibition is to restrain the action of inferior courts from acting in excess of their jurisdiction. State ex rel. Pearson v. Hansen, Wyo., 409 P.2d 769 (1966); State ex rel. Mau v. Ausherman, 11 Wyo. 410, 72 P. 200 (1903), reh. den. 11 Wyo. 410, 73 P. 548 (1903). As said in Williams v. Stafford, Wyo., 589 P.2d 322, 324 (1979):

“ * * * The function of a writ of prohibition is to prevent action and not to undo that which has already been done. State ex rel. Powell v. Ilsley, Wyo., 387 P.2d 676, 677 (1963); and State ex rel. Mau v. Ausherman, 11 Wyo. 410, 72 P. 200, 214, rehearing denied 73 P. 548 (1902). It is also important to note and emphasize that, other than in exceptional or extraordinary circumstances, the writ of prohibition is only available if the lower court does not have subject-matter jurisdiction or, having such jurisdiction, it exceeds the scope thereof. State ex rel. Weber v. Municipal Court of the Town of Jackson, Wyo., 567 P.2d 698, 699 (1977).”

In Williams v. Stafford, the proceeding was treated as one for a writ of mandamus although the petitioner had improperly requested a writ of prohibition. Such is not the situation in this case. It is a writ of prohibition that is requested and which would be proper if the relief were granted.

The question here, then, is whether or not jurisdiction existed in the District Court of the Seventh Judicial District to entertain the petition for mandamus. We are not called upon to decide whether or not the court acted properly — only if it had jurisdiction to act at all. The same or similar reasons to restrict our review to this question are those set forth in the majority opinion for restricting review to the question on mandamus of whether or not the act in question was ministerial. Therefore, it would serve little purpose here to repeat such logic as it applies to the extent of our review of a writ of prohibition.

A writ of prohibition will not lie to correct errors in practice or proceedings. Dobson v. Westheimer, 5 Wyo. 34, 36 P. 626 (1894); State ex rel. Mau v. Ausherman, supra. It will lie to prevent action in excess of jurisdiction, but not to prevent erroneous exercise of jurisdiction. English v. McCrary, Fla., 348 So.2d 293 (1977).

We directed that mandamus proceedings in cases such as this “in the future should be brought first before a lower court whenever possible,” and we concluded that “the function of a reviewing court in dissemination cases is to determine whether there has been an abuse of discretion’’ in the process of applying the standards adopted by us to the particular case. Williams v. Stafford, supra, 589 P.2d at 325, 327 (emphasis in quoted material not supplied).

I conclude that the District Court of the Seventh Judicial District has jurisdiction to entertain the petition for a writ of mandamus. Whether or not he properly exercised *1278that jurisdiction is not an issue properly placed before us in a writ of prohibition.

Writs of prohibition are not favored and are issued with caution and are not issued in a doubtful case. State ex rel. Pearson v. Hansen, supra; State ex rel. Powell v. Ilsley, Wyo., 387 P.2d 676 (1963). They will not issue if there is another adequate remedy, such as appeal. State ex rel. Kane v. Dobler, 53 Wyo. 252, 81 P.2d 300 (1938); State ex rel. Richmond v. District Court of Second Judicial District within and for Albany County, 45 Wyo. 29, 14 P.2d 673 (1932); State ex rel. Sheehan v. District Court of Fourth Judicial District in and for Johnson County, Wyo., 426 P.2d 431 (1967).

An appeal has been docketed on the issue which is the foundation for this proceeding. I would exercise the discretionary power available for use in connection with applications for writs of prohibition, State ex rel. Jones v. District Court of Ninth Judicial District, 37 Wyo. 516, 263 P. 700 (1928); State ex rel. Pearson v. Hansen, supra, and deny the petition.

. With reference to writs of mandamus and prohibition:

“ * * * In a general sense they are counterparts of each other in their object and purpose, but only to the extent that one is prohibitory and the other mandatory; one acts on the person and the other acts on the tribunal; beyond that they have little in common. * * *” (Emphasis supplied.) 63 Am.Jur.2d Prohibition § 3, p. 228 (1972).