(Dissenting). Certiorari will not lie unless it be alleged and shown that the tribunal has exceeded its proper jurisdiction or otherwise acted illegally; and it must also appear that there is no other plain, speedy and adequate remedy. Code Sec. 4154. It will never lie to correct an error, but is only to test the jurisdiction of the tribunal and the legality of its acts. State v. Roney, 37 Iowa 30.
Where a party has the right of appeal, he cannot, as a *611rule, proceed by certiorari. Ransom v. Cummins, 66 Iowa 137; State v. Schmidtz, 65 Iowa 556. Therefore when a court, in the exercise of its jurisdiction, proceeds regularly and according to the usual course of procedure, the action will not lie, no matter how erroneous its decision. In the ease now under consideration, there is no question regarding the jurisdiction of the court and it does not appear that it acted irregularly or departed from the usual course of procedure; or that its acts were in any way illegal, save that it came to a wrong conclusion upon the evidence adduced, and made an erroneous ruling.
There' was consequently no irregularity or illegality in its proceedings. Little difficulty arises when the question involves the matter of jurisdiction or of excess thereof.
The only question of doubt in any of these eases, as a rule, is whether or not the action of the court is illegal, as that term is used in the statute. Our previous pronouncements upon this question are very clear. For example, in Eels v. Bailie, 118 Iowa 519, the court said: “It is fundamental that a writ of certiorari is never used to correct a mere error, but only to test the jurisdiction of the tribunal and the legality of its action. If the mistake complained of was a mere matter of judgment the writ will not ordinarily lie; for the tribunal guilty thereof is not acting illegally. Sec. 4154 of the Code also provides that the writ should not be granted when there is another plain, speedy, and adequate remedy. Under this section it has frequently been held that the writ should not be granted where the error complained of can fully and speedily be corrected by appeal. State v. Schmidts, 65 Iowa 556; Ransom v. Cummins, 66 Iowa 137; Remey v. Board, 80 Iowa 470; Oyster v. Bank, 107 Iowa 39. . . . Both defendants had jurisdiction to pass upon these motions, and the' error, if any, was a mere mistake of judgment, which cannot be reviewed in this action. Plaintiff invoked the jurisdiction, or rather the action, of the district court over which defendants preside, asked it to pass upon his motion to dismiss, and is now complaining of the rulings denying his motion. This is all. there *612is to the case as it is presented to us. Manifestly, the court, and the defendants as the presiding officers thereof, had the right, and it was their duty, to pass upon those motions to dismiss; and, if they erred, it was an error of judgment, from which an appeal may be taken in a proper ease. But they were not without jurisdiction, nor were they acting illegally in overruling the motions. Concede that their actions were erroneous, it does not follow that they were acting illegally, for as pointed out in the case first cited, if the mistake is one of judgment merely, about a matter on which defendants had a right to pass, their actions were' not illegal. . . . When it is once conceded — as it must be — that defendants, as judges, had the right to pass upon plaintiff’s motion, the case is determined ; for it follows that they had jurisdiction, and did not act illegally, as that term is used in law. This is made plain by the authorities heretofore cited. See, also, Davis Co. v. Horn, 4 G. Greene 94, and particularly Fagg v. Parker, 11 Iowa 18, where it is said: ‘ It is no part of the office of the writ of certiorari to correct every alleged error of judgment in judicial tribunals which parties claim take them by surprise. Nor, again, does this writ issue to correct an error, where the party has lost the plain, speedy, and adequate remedy pointed out by law by his own fault and negligence. ’ . . .
“In Sunberg v. District Court, Linn County, 61 Iowa 597, it is said: ‘The order in the district court transferring the cause to the United States court was within its jurisdiction. While the order may have been erroneously made, it cannot be claimed that the court exceeded its jurisdiction. The petition does not show that the court acted illegally; that is, that its proceedings were not in accord with law, in transferring the case. The real ground of complaint is that the court erred in substituting new defendants in the action. If they had been regularly and lawfully substituted, there would have b een no irregularity or error in -transferring the case. The order to that effect cannot, therefore, be reviewed upon certiorari, for *613the court in making it did not exceed its proper jurisdiction, or otherwise act illegally. ’ ’ ’
Again, in Butterfield v. Treichler, 113 Iowa 328, the court said: “The writ of certiorari is never used to correct a mere error, but only to test the jurisdiction of an inferior tribunal. State v. Roney, 37 Iowa 30; Ransom v. Cummins, 66 Iowa 137. The trial court clearly had jurisdiction to rule on these matters.”
In Darling v. Boesch et al., 67 Iowa 702, the court said: ‘ ‘ The writ of certiorari is granted when the inferior tribunal, board or officer, is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally (Code [’73] See. 3216) and it cannot be said that the board has acted unlawfully because it erred in the determination of a question which it was required to determine in the proceeding.”
In Finn v. Winneshiek District Court, 145 Iowa 157, we said: ‘ ‘ Certiorari is, or may be, an original proceeding in this court, and may be brought in all cases where an inferior tribunal, exercising judicial functions, is alleged to have exceeded its proper jurisdiction, or otherwise acted illegally, and there is no other plain, speedy, and adequate remedy. Code, Sec. 4154. It is not intended to supplant the ordinary remedy of appeal, and will not lie to correct rulings of an inferior tribunal which are simply erroneous. State v. Roney, 37 Iowa 30. Where a party has a right of appeal he cannot ordinarily proceed by certiorari: Ransom v, Cummins, 66 Iowa 137; State v. Schmidtz, 65 Iowa 556; Wise v. Chaney, 67 Iowa 73. . . . These were each and all matters which might have been corrected on appeal, and the order requiring plaintiff to answer each and all of the cross-interrogatories, etc., was at most erroneous and not illegal. The distinction between an erroneous and an illegal order is well pointed out in Tiedt v. Carstensen, 61 Iowa 334, where it is said:
“ ‘We are, therefore, only to inquire, when is a tribunal *614“acting illegally” in the contemplation of the statute? When the law prescribes proceedings to be had by an officer or tribunal in cases pending before them, the omission of such proceedings is in violation of law, and the court or officer omitting them would, therefore, act illegally. In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal. If it be clothed with authority to decide upon facts submitted to it, the decision is not illegal, whatever it may be, if the subject-matter and the parties are within its jurisdiction, for the law entrusts the decision to the discretion of the tribunal. ’ ’ ’
Again the question was before the court, in Iowa Loan and Trust Co. v. District Court, 149 Iowa 66, and we there stated: ‘ ‘ The question presented by the writ is whether the' defendant exceeded his jurisdiction, or .otherwise acted illegally. If his action was merely erroneous, a writ of certiorari will not lie. The distinction between an erroneous order and an illegal one is thus stated in Tiedt v. Carstensen, 61 Iowa 334: ‘When the law prescribes proceedings to be had by an officer or tribunal in cases pending before them, the omission of such proceedings is in violation of law, and the court or officer omitting them would therefore act illegally. In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal. If it be clothed with authority to decide upon facts submitted to it, the decision is not illegal, whatever it may be, if the subject matter, and the parties are within its jurisdiction, for the law entrusts the decision to the discretion of the tribunal. ’ See also Wise v. Chaney, 67 Iowa 73; Medical College Assn. v. Schrader, 87 Iowa 659; Voting Machine Co. v. Hobson, 132 Iowa 38; Finn v. District Court, 145 Iowa 157.”
*615It is true that Judge' Evans dissented from the conclusion in this ease, but the rule has several times been reaffirmed since the filing of that opinion. See Witmer v. District Court, Polk County, 155 Iowa 244, where the doctrine was reannounced, and as said in the last cited case: ‘ ‘ Indeed, the general proposition that an erroneous ruling of a court in a proceeding of which it has jurisdiction cannot be reviewed on certiorari has so often been announced that further citation of authorities would not be justified. ’ ’
Still later, in Hatz v. Hutchinson, J., 168 Iowa 141, the court, speaking through Evans, Justice, said: “If the court had jurisdiction to hear the appeal, it could not avoid the question thus presented to it. If it had jurisdiction to count the names as a part of the petition, it necessarily had the same jurisdiction to reject them as having been withdrawn. If it be assumed that the petitioners were right in their contention before the district court that the names in question ought to have been counted as part of the petition of consent, the contrary finding by the district court was only an erroneous conclusion and was not an ‘illegality’ in any other sense.”
The rule has been announced in a variety of cases and has never been departed from, so far as I have been able to discover. C. B. & Q. R. R. v. Castle, 155 Iowa 124, is not a departure from the rule because the court expressly found that the order there reviewed was in excess of the court’s jurisdiction, and that it imposed a penalty which was not only erroneous, but irregular and illegal.
The rule has been applied in a variety of cases. For instance:
In an action where an order on a petition for a removal of the cause to the federal courts was involved, the court having erroneously ordered a transfer to the federal court, it was held that the action could not be reviewed by certiorari. In one of the eases, it was held that the erroneous dismissal of an appeal from a justice’s court to the district court could not be reviewed on certiorari.'
*616In several cases it was held that the erroneous exclusion of testimony, or an order for the production of books or papers, a motion for a change of place of trial, and various other matters, could not be reviewed, save that the court was without, or acted in excess of, its jurisdiction.
In a recent case, it was held that an erroneous order denying a change of venue could not be reviewed on certiorari. Barry v. Court, 167 Iowa 306. See also, as sustaining the doctrine I have announced: Ferguson & Son v. Town, 119 Iowa 338; State v. Parker, 147 Iowa 69; Ransom v. Cummins, 66 Iowa 137.
In the latter case it is said: ‘ ‘ The justice of the peace had jurisdiction of the cause and of the parties. He had jurisdiction to determine every question of whjch plaintiff complains. If his rulings were erroneous, the' plaintiff had a plain, speedy and adequate remedy by appeal. He would have been entitled upon appeal to make an application for a change of venue, and to challenge jurors, and to a verdict in proper form. ’ ’
It is very clear to my mind that the trial judge in this case had jurisdiction and that the most that can be said of his order is that he erred in his conclusion, either in his finding of facts or in his conclusion of law. He did not act illegally nor were his proceedings irregular. He had full jurisdiction of both parties and subject-matter, and it will not do, I think, to say that if erroneous conclusions result in illegality, then there is illegality, and not merely an erroneous conclusion. This, to my mind, is reasoning in a circle; otherwise all erroneous conclusions are illegal, and this is manifestly not true. A case much like this one is Butterfield v. Treichler, 113 Iowa 328, wherein it was held that the writ of certiorari would not lie because the court erroneously directed a jury trial in a case where such was not permissible. I can hardly understand the logic of an opinion which holds that, if a jury trial is denied where the parties are entitled to it, then they are entitled to a writ of certiorari to review the ruling; whereas, *617if granted when they are not entitled to it, such writ will not lie.
I feel that this opinion, if adopted by the majority, is an overruling of the Butterfield case. That case has so many times been followed and adopted and the doctrine upon which its is based is so well settled in this court that I do not think it opportune to overrule it.
Much more might be said in support of my conclusions, and many cases cited, not only from this court, but from other jurisdictions sustaining the rules I have announced,- but I shall not do more at this time than to quote from a learned opinion of the Louisiana court, as follows:
“The functions of a certiorari are simply to ascertain the validity of proceedings before a court of justice, either on the charge of their invalidity, because the essential forms of the law have not been observed, or on that of the want of jurisdiction in the court entertaining them. They have never been to inquire into the correctness of the judgment rendered where the forms of the law have been followed, and where the court had jurisdiction, and was therefore competent. Hence it has been held that the supervisory jurisdiction of this court, under a certiorari, must be restricted to an examination into the external validity of the proceedings had in the lower court. It cannot be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the ease. The supervisory powers of the court must not be confounded with its appellate jurisdiction. In the ease referred to the district court had jurisdiction, and the proceedings are regular on their face. If the relator has the rights which he asserts, and if, by the refusal of the District Judge to recognize and enforce them, he is prevented from preparing his defense, and the matter is properly presented in the prosecution proceedings the same may be inquired into on an appeal, and justice can then be done.” State ex rel. Matranga v. Marr, 10 L. R. A, 248.
*618This is all so elementary that the majority do not dispute it, but seek to avoid it. It remains to be considered whether, indeed, the case at bar has anything that takes it out of the rule.
There was a resistance to the demand of the defendant for a jury, and the trial court was compelled to pass upon the merits of that resistance, and, as an incident thereto, on whether something had occurred earlier that operated as a waiver of jury trial; and some considerable reasoning is indulged in by the majority opinion as to whether what occurred operated as such waiver. It is admitted here that there is for consideration whether a trial was begun, and thereby objection to trial without jury came too late' in view of the statutory provision that a jury may be waived by going to trial without objection and without a demand for a jury, and it is said by the majority that if a record entry made below discloses a waiver of jury in the trial of the main case, it was such by implication only.
Conceding, for the purpose of this dissent, that, if a trial court arbitrarily denied a trial by jury where in reason no question could be and none was made as to the right to such trial, certiorari will lie, but does that meet a case where the original jury trial was fairly in contest and its contest submitted to the court and it decided it in a way that we think it should not be decided?
If the majority is followed to the logical end, then certiorari lies in every case where a trial by jury is denied when it should have been allowed. In some special proceedings such trial is and in others it is not granted. Motion to transfer either to law or to equity always involves whether there shall or shall not be a jury trial. Motions to direct a verdict present whether the court rather than the jury shall decide the cause.' Is certiorari entertained to test the rulings in such matters as these just referred to ?
Suppose the defendant does have but a short expectancy. *619and is old and in poor health. Does this have bearing on whether an appeal is or is not a speedy and adequate remedy ? So to hold creates a new definition. If it be correct, only strong, young' men will be denied certiorari, while it will be entertained for the old and feeble. As none may know when death will come, appeal would never bé to a certainty a speedy and adequate remedy.
Suppose an adverse judgment here would create the status of an incompetent, and that this might make complications in the event of death; how does that differ in principle from divorce, or a judgment that one has not been adopted, or an unrecognized illegitimate?
Why would not a suspensive writ pending appeal and advancing the submission of the cause give all the speed and adequacy, the existence of which denies the writ of certiorari ?
Salinger, J., concurs in this dissent.