dissenting:
I respectfully dissent from the majority opinion and in addition to the matters set forth in Mr. Justice Sutton’s dissenting opinion, in which I join, wish to point out the following reasons for my dissent.
At the time of the commencement of this action, an original proceeding before this court, there was pending in the District Court of Pueblo County an action, No. 39,428, wherein Mary V. Lucas and William E. Lucas, Sr., were plaintiffs and George K. Moore and Grace Elaine Moore, not parties to this proceeding, were defendants. In Action No. 39,428 the plaintiffs had demanded information from the defendants on two questions: (1) Do you have liability insurance?; (2) What are the policy limits? Information was furnished- as to the first question and refused as to the second, and after proper proceedings on September 29, 1958, John H. Marsalis, Judge of the District Court, sustained the defendants’ contention that they were under no obligation to divulge the policy limits of their insurance and entered a formal and final order denying plaintiffs’ *533formal' motion for an order directing defendants (Moores) “ * * * to set forth the limits of liability under the liability insurance policy of defendants [Moores] upon the date of the collision * *
Following this order and on October 21, 1958, plaintiffs filed their complaint in this court, labelled: “COMPLAINT FOR A WRIT IN THE NATURE OF MANDAMUS” and named as defendants: (1) The District Court of the County of Pueblo in the Tenth Judicial District, and (2) the Honorable John H. Marsalis, one of the Judges thereof.
The real burden of plaintiffs’ complaint herein is set forth in paragraph XII thereof:
“The order of Defendant District Court and Judge denying plaintiffs’ right to secure answers to said questions was [1] an abuse of the Court’s discretion and [2] an act exceeding the Court’s jurisdiction in that under Rule 26(b), Colorado Rules of Civil Procedure, said questions and answers are relevant to the subject matter and proceedings involved in said civil action now pending.” (Emphasis supplied.)
The relief requested is set forth in the prayer:
“WHEREFORE, plaintiffs pray that [1] this Honorable Court issue a writ in the nature of a Writ of Mandamus commanding the District Court of the 10th Judicial District in and for the County of Pueblo, State of Colorado, and the Honorable John H. Marsalis, one of the Judges thereof, to expunge from the record in said Civil Action No. 39428 that certain order issued by the said Court and Judge on September 29, 1958, denying plaintiffs’ right to discover the insurance limits under the liability insurance policies owned by the said Moores at the time of the occurrence of said collision; and, further, [2] that said District Court and said Judge thereof be instructed to require said Moores to supply plaintiffs with the information requested.” (Emphasis supplied.)
On receipt of this complaint this court entered its order to show cause, as follows:
*534“You are hereby ordered and directed to appear in the Supreme Court of the State of Colorado within ten days from service hereof and answer in writing and show cause, if any you may or can have, why the relief requested in the complaint of the plaintiffs herein should not he granted.” (Emphasis supplied.)
The majority opinion has been announced in two parts, the first dated March 9, 1959, the second November 2, 1959. The March 9, 1959, part closes as follows:
“Therefore, we conclude that the rule to show cause heretofore issued should be made absolute, and it is so ordered.”
In my humble opinion, 'making the rule absolute constituted a MANDATE of this court that:
“ * * * the District Court * * * and the Honorable John H. Marsalis * * * expunge from the record in said Civil Action No. 39,428 that certain order * * * denying plaintiffs’ right to discover the insurance limits under the liability insurance policies owned by the said Moores * * * and said Judge thereof be instructed to require said Moores to supply plaintiffs with the information requested.”
In part two of the majority opinion, it is stated:
“However, the records of this Court show that the following order was issued:
“ ‘On consideration of the pleadings and briefs herein, it is hereby ordered, adjudged and decreed that the rule to show cause heretofore and on, to-wit: - the sixth day of November, A.D. 1958 issued herein be, and hereby is, made absolute.
“ ‘It is further ordered and adjudged that the defendants, the District Court of the County of Pueblo in the Tenth Judicial District and the Honorable John H. Marsalis one of the Judges thereof be, and they hereby are, commanded to rescind and revoke that certain order made and entered September 29, 1958, in civil action No. 39,428, entitled Mary V. Lucas and William E. Lucas, Sr., Plaintiffs, vs. George K. Moore and Grace Elaine *535Moore, Defendants, lately pending in said court, denying plaintiffs’ right to discover the insurance limits under the liability insurance policies owned by the said Moores at the time of the occurrence of the automobile accident complained of. The defendants are further ordered and commanded to require said Moores to supply plaintiffs herein and in said action with the information requested in conformity with the opinion filed herein.’ ” (Emphasis supplied.)
Lest there be any misunderstanding, I point out that this order was promulgated by the clerk of this court and entered on March 8, 1959, all of which was unknown to the author of this dissent until a few days ago, and so far as the author of this dissent knows was never presented to this court for approval or disapproval. Surely it must be conceded that the clerk of this court has no authority to “order, adjudge or decree” anything. If that order grants anything more, less or different than the judgment of this court, as expressed in the majority opinion, it is a nullity and abortive.
Plaintiffs’ counsel and the majority of this court have divergent views as to the nature of this proceeding. Counsel says it is a complaint for “a writ in the nature of mandamus.” At the time part one of the majority opinion was released, it appears that no conclusion had been reached by the majority as to whether it was mandamus or certiorari, for the majority opinion states:
“We shall treat this complaint as if it were a petition seeking the issuance of a writ of mandamus or certiorari as the same existed at common law. * * (Emphasis supplied.)
Further confusion is manifest by the statement in part two of the majority opinion wherein it is stated, contrary to the above statement:
“In our opinion [part one] we treated the complaint herein as a petition seeking a writ of certiorari.” (No mention is made of mandamus.)
Adding to the confusion, making the rule absolute *536constituted a mandate (the product of a mandamus action) directed to the district judge. Even the clerk’s order referred to by the majority, if it were valid, is a mandate.
The majority opinion, contrary to the expressed understanding of all counsel in the matter, states that this is not a proceeding under Rule 106 for the reason that: “This rule does not apply to original proceedings.” Such statement runs contrary to dozens of decisions of this court wherein original proceedings brought in district courts and this court pursuant to this rule have been recognized, sanctioned and approved.
In Swift v. Smith, 119 Colo. 126, 201 P. (2d) 609, referred to in the majority opinion, this court stated:
“This is an original proceeding in the nature of certiorari brought under rule 106 (a) (4), R.C.P. Colo., by Eleanor Swift and others, against Osmer E. Smith, district judge, and other officials, to determine whether the latter abused their discretion in granting orders for immediate possession of certain premises belonging to Swift and others to be used for highway purposes. We issued a rule to show cause, whereupon an answer was filed, and the record in the district court was certified and filed herein.”
In Town of Glendale v. City and County of Denver, 137 Colo. 188, 322 P. (2d) 1053, also referred to in the majority opinion, this court, in a unanimous en banc decision, quoting from Potashnik v. Public Service Company of Colorado, 126 Colo. 98, 247 P. (2d) 137, stated:
“ ‘That a writ of error to review an interlocutory order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under Rule 106, R.C.P. Colo., when directed to an endangered, fundamentally substantive and substantial right, is maintainable and recognized as a proper remedy is settled. Swift v. Smith, 119 Colo. 126, 201 P. (2d) 609.’ ”
As recently as last July, this court, in City and County of Denver v. District Court, 140 Colo. 1, 342 P. (2d) *537648, No. 18,876, recognized the propriety of bringing an original proceeding in the nature of certiorari under Rule 106.
Rule 106 precludes this court from granting the relief requested herein. The rule states:
“ * * * Review shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion.”
The opinion of the majority removing this case from those covered by the rule accomplishes nothing, for the rule only states the well established principles of law.
“ * * * The principal office of the writ is to control the action of an inferior tribunal and to keep it within its jurisdiction; * * *.” —• 14 C.J.S. 122, §2 a.
“The office of a certiorari is to bring up the proceedings of the court below for examination, that they may be affirmed or quashed, and not to enforce any rights growing out of those proceedings, its purpose not being to compel performance.” — 14 C.J.S. 123, §2 a.
In County Court v. People, 55 Colo. 258, 133 Pac. 752, this court said:
“ * * * It is elementary that when a writ of this character [certiorari] is granted upon a proper petition, and the inferior tribunal certifies its record in response thereto, the limit of the power of the reviewing court is to ascertain from that record alone whether the inferior tribunal regularly pursued its authority, and thereupon pronounce judgment accordingly. §337 Code Civil Proceed., 1908, County Court v. Eagle Rock Co., 50 Colo. 365, 115 Pac. 706, Morefield v. Koehn, 53 Colo. 367, 127 Pac. 234.”
In Bulger v. People, 61 Colo. 187, 156 Pac. 800, this court said:
“By §3 of art. VI of the Constitution this court has power to issue writs of certiorari and other writs therein enumerated. Those writs, however, are the common law writs, and under our decisions when a writ of certiorari is issued by this court it is limited solely to the question *538of the jurisdiction of the inferior tribunal. Leppel v. District Court, 33 Colo. 24, 27, 78 Pac. 682; People v. District Court, Idem, 293, 80 Pac. 908; People v. District Court, 30 Colo. 488, 71 Pac. 388.”
In Denver v. People ex rel., 129 Colo. 41, 266 P. (2d) 1105, this court said:
“On review. upon certiorari, under Rule 106 (4), R.C.P. Colo., courts are limited in their inquiry as to whether the Commission had exceeded its jurisdiction, had abused its discretion, or had regularly pursued its authority. Public Utilities Commission v. Town of Erie, 92 Colo. 151, 18 Pac. (2d) 906.”
In People v. District Court, 72 Colo. 525, 211 Pac. 626, this court said:
“We do not see that there was lack of jurisdiction. The court had jurisdiction of the whole case and was, of course, the only court that had power to hear and determine the motion. Having that power it necessarily had power to determine the question either way — to grant, or deny — and it follows that its decision however erroneous was not in excess of jurisdiction. The motion was not upon any point involving discretion, therefore, since certiorari will lie in this state only for excess of jurisdiction or great abuse of discretion, the action of the court is no more than error and certiorari is not the remedy. Dilliard v. State Board, 69 Colo. 575, 196 Pac. 866.”
In Medical Board v. Spears, 79 Colo. 588, 247 Pac. 563, this court said:
“ * * * The inferior tribunal unquestionably had jurisdiction. It did not abuse its discretion or fail regularly to pursue its authority. Neither the district court nor this court may enter upon an investigation of the merits, or inquire if the board made a mistake in its findings of fact, or erred in its conclusions upon the facts. * * *.”
The majority opinion states:
“We have concluded that the. matter should be deter*539mined on its merits and that the motion to dismiss should be denied. * * *.
“We conclude that the complaint should be entertained and that this question [whether defendants should be required to disclose policy limits of their insurance] should be determined on its merits.”
In proceeding to determine the matter on the merits, pursuant to said statements, the majority proceeded contrary to repeated pronouncements of this court and without sanction or precedent.
The purpose of certiorari is stated in a general way in 10 Am. Jur. 524, §3:
“ * * * According to the weight of authority, where the scope of the writ has not been narrowed by statute, its office extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, and all questions of irregularity in the proceedings, that is, of the question whether the inferior tribunal has kept within the boundaries prescribed by the express terms of the statute law or well-settled principles of the common law. •
“The judgment of the court in certiorari affects only the validity of the record. That is, its judgment determines that the record is valid or invalid. Moreover, on a certiorari, in the absence of statutory enlargement, only the external validity of the proceedings had in' the lower court may be examined by the superior court under its supervisory jurisdiction. The supervisory jurisdiction of the court cannot he exercised in order to review the judgment as to its intrinsic correctness, either upon the law or the facts of the case.” (Emphasis supplied.)
In Civil Service Com. v. Cummings, 83 Colo. 379, 265 Pac. 687, this court said:
“There is another reason why the decree should be set aside even if certiorari is the appropriate remedy. It is. established law in this state, as it is generally in *540this country, that certiorari is an extraordinary remedy and is restricted in its inquiry to jurisdictional questions and, under our Code of Procedure, to manifest abuse of discretion, which we have held to mean a failure of a court regularly to pursue its authority. It is not a flexible writ. All that can be done under it is to quash or refuse to quash the proceeding complained of. 11 C.J. pp. 88, 89, §2. No rights growing out of such proceedings can be enforced. * *
In Carpenter v. People ex rel., 112 Colo. 151, 148 P. (2d) 371, this court said:
“ * * * It is clearly settled in this jurisdiction that the only questions to be determined by certiorari are the existence of jurisdiction and the absence of arbitrary or capricious action or abuse of discretion. State Civil Service Com. v. Cummings, 83 Colo. 379, 265 Pac. 687; County Court v. People ex rel., 55 Colo. 258, 133 Pac. 752; Board v. Handley, 105 Colo. 180, 95 P. (2d) 823.”
In Lindsley v. Denver, 69 Colo. 562, 196 Pac. 859, this court said:
“In a review on certiorari the only question to be considered is that of jurisdiction. Whether the court acted arbitrarily, or justly and wisely, is wholly beside the mark. * *
In Leonhart v. District Court, 138 Colo. 1, 329 P. (2d) 781, this court said:
“Corrective measures are not within the sweep and coverage of prohibition; correction of error is the function of a writ of error. A trial court has the power to render a right as well as a wrong decision. ‘Prohibition may never be used to restrain a trial court having jurisdiction of the parties and of the subject matter from proceeding to a final conclusion. Nor may it be used to restrain a trial court from committing error in deciding a question properly before it; it may not be used in lieu of a writ of error.’ Prinster et al. v. District Court, decided May 19, 1958, 137 Colo. 393, 325 P. (2d) 938.”
The most recent pronouncement of this court, made *541October 14, 1959, in Case No. 18,196, City of Aurora v. Congregation Beth Medrosh Hagodol, 140 Colo. 462, 345, P. (2d): 385, runs contra the majority opinion. This court in a: .unanimous decision, one justice not participating, said: .
“Questions of jurisdiction or excess thereof do not encompass consideration of the merits of a cause. One may, for instance, assert a meritorious claim before the wrong-, tribunal, and a higher tribunal may enter prohibitory orders against further procéeding without in any manner affecting the integrity of the claim. People v. First Judicial District, 54 Colo. 237, 130 Pac. 324; State Board v. Noble, 65 Colo. 410, 177 Pac. 141; People v. Morley, 72 Colo. 421, 211 Pac. 643; Doran v. State Board, 78 Colo. 153, 240 Pac. 335.”
There is good reason why in original proceedings in prohibition, mandamus and certiorari the court determines only the question of jurisdiction and avoids determination of the merits. This court does not have the litigants' before it; it cannot determine their rights or duties — we do have the inferior tribunal before us and under our supervisory powers we can determine questions concerning its jurisdiction.
As pointed' out above, the Moores are not before this court; they have never been served with any process or notice. In Case No. 39,428 in the District Court of Pueblo County they were parties, as were the Lucases. The parties had their day in court; they had their rights and duties with reference to answering questions adjudicated by a constitutional court of unquestioned jurisdiction, presided over by a duly elected judge. of- unquestioned ability and impartiality; the question was resolved on the motion of Lucases, who invoked' the aid of the judge and requested that he exercise his jurisdiction and proceed, and proceed he did, heard arguments, took the matter under advisement and finally ruled on the motion (albeit distastefully to Lucases) and. judicially *542determined that Moores need not answer; he determined the question “on its merits.”
Now this court redetermines this identical question “on its merits” and without having before it two of the parties to the district court proceedings. Such determination in my humble opinion is in violation of both federal and state constitutional guaranties of due process and is therefore void for want of jurisdiction.
The following quotation from 30A Am. Jur. 180, §26, may seem trite:
“It is a fundamental doctrine of the law that a party to be affected by a personal judgment must have a day in court, or an opportunity to be heard. In this connection, it is sometimes declared broadly that every man is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. The judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. * *
In 14 C.J.S. 295, §152, it is said:
“Unless authorized by constitutional or statutory provision, the court, on certiorari, cannot review the cause on its merits.” (Emphasis supplied.)
At page 319, §174, it is said:
“ * * * a reviewing court has no power to annul, modify, or revoke any action of the inferior tribunal where it has regularly pursued its authority, no matter how erroneous the decision may be. Also, it has been held that the reviewing court has no power to enter a judgment on the merits of the controversy, nor to direct the respondent to enter any particular order or judgment. * *
In Ruth v. United States Fidelity and Guaranty Co., 83 So. (2d) 796 (Fla.), the court said:
“It also follows that appellee’s contention that the earlier certiorari proceedings referred to ‘was actually an *543appeal from a final judgment’ and that the denial of the requested writ amounted to an affirmance thereof by this court is without legal efficacy. This court neither affirms nor reverses the judgment upon common-law writ of certiorari.” (Emphasis supplied.)
In Byrnes v. Retirement Board, 399 Ill. App. 55, 89 N.E. (2d) 59, the plaintiff had filed with the board her claim arising out of the death of her husband. The board denied the claim, whereupon she filed a petition in the Superior Court in common law certiorari. The Superior Court quashed the record of the board’s proceedings, from which order respondent appealed to the Court of Appeals, which court found that the Superior Court had exceeded its jurisdiction and reversed the judgment. The court said:
“It must be conceded that the Board had jurisdiction, that it proceeded according to law, that it acted on evidence and that the evidence fairly tends to support its action. In a common law certiorari proceeding these are the only circumstances which the court may pass on.”
In High Line Canal Co. v. People ex rel., 8 Colo. App. 246, that court had for consideration the propriety of an order of the district court issuing a writ of mandamus. In holding such action improper, the court stated:
“ * * * The courts will not interfere [by mandamus] wherever it is apparent the interests of third parties,
who are not before the court, are necessarily involved. ¥ •!• ¥
* ❖ *
“ * * * Rights of third persons were shown to be involved, and those persons were not before the court, and a judgment respecting Eli Allen’s rights, or those of his grantees, might operate to their prejudice. * * *. The reversal is not put on this basis, but it is offered as a suggestion to illustrate the difficulties which might intervene if in this sort of a proceeding the court should undertake to adjudicate the rights conferred by the Bomberger contract.”
*544See, also, Colo. Assn. v. Uncompahgre Co., 134 Colo. 131, 300 P. (2d) 968.
In Prinster v. District Court, 137 Colo. 393, 325 P. (2d) 938, which was an original proceeding' in prohibition, this court said:
“Plaintiffs in the action before Judge Hughes, as well as the defendants who have decreed rights, who enjoyed favorable rulings at the hands of Judge Hughes, are not parties to the proceeding before us and, not being before us, we are in no position to adjudicate their rights.”
The majority opinion of this court relies heavily on our statute dealing with motor vehicles and liability insurance as a basis for requiring that the requested information be given. There is no statutory requirement that any operator of a motor vehicle carry insurance. Whether to do so or not is entirely optional. The majority, in speaking of the so-called Automobile Safety Responsibility Act, states:
“ * * * Its ultimate object is to provide compensation for innocent persons who might be injured through faulty operation of motor vehicles. * *
It would seem that if this were the ultimate purpose the legislature would have required operators to carry insurance so that the “ultimate purpose” might have some reasonable chance of becoming a reality. In seeking to determine the purpose or object of legislation, some consideration should be given to the purposes as expressed by the legislature in adopting the Act. Chapter 163, Session Laws 1935 (now C.R.S., 13-7-1, et seq.) states purposes of the Act quite foreign to those assigned by the majority opinion: ■ •
“AN ACT
RELATING TO THE OPERATION OF MOTOR AND OTHER VEHICLES UPON THE HIGHWAYS OF THE STATE; TO ELIMINATE THE RECKLESS AND IRRESPONSIBLE DRIVERS OF MOTOR VEHICLES FROM THE HIGHWAYS; TO PROVIDE FOR PROOF OF FINANCIAL RESPONSIBILITY BY OWNERS *545AND OPERATORS OF MOTOR AND OTHER VEHICLES; TO PROVIDE FOR THE SUSPENSION AND REVOCATION OF OPERATORS’ AND CHAUFFEURS’ LICENSES AND CERTIFICATES OF REGISTRATION; PROVIDING FOR ENFORCEMENT OF THIS ACT AND PENALTIES FOR THE VIOLATION HEREOF.”
In further discussing the insurance feature, the majority opinion states:
“It is also conceivable that although a defendant may have liability insurance he may fail to properly notify his insurance carrier. This neglect would seriously prejudice the plaintiff under the Safety Responsibility Law. Thus it is in the interest of the plaintiff to ascertain all of the facts pertaining to liability insurance coverage, including whether there has been notice to the carrier.”
This statement, contained in part one of the majority opinion, it would seem is predicated on the erroneous statement contained in part one of the opinion, corrected in part two:
“ * * * questions were propounded relative to the existence of liability insurance * * * the defendants refused to answer. * *
Understandably, insurance companies want to be notified of the facts of an accident whereby they might have some liability under their policies and place provisions therein requiring notice. Plaintiffs were furnished with information as to the fact of insurance, presumably all of the information desired except the policy limits, and as a consequence thereof plaintiffs were in a position to give the required notice so that they would not be “seriously prejudiced” by failing to give notice. It would be somewhat presumptuous and fatuous for Lucases to notify Moores’ insurance carrier of the limits of the policy , that it itself had issued.
As a consequence of this decision, the Honorable John H. Marsalis is confronted with a mandate of this court to “expunge” from the court records an order, which dis*546posed of a motion which was filed by attorneys for the plaintiffs in the case then pending before him. If that mandate is carried out then there would still remain undisposed of the motion.
Strange indeed to me, and I believe to the law, that a duly elected constitutional judicial official, called upon to rule upon a motion filed by plaintiff, in pursuance of his sworn duty, sets the matter for argument, hears arguments and rules on the motion, should now in a proceeding of this type, a proceeding which plaintiffs say is “in the nature of mandamus” and which the majority pronounces to be certiorari, be directed to expunge — to destroy — to erase — to blot out — to obliterate such record so made and to change his ruling on the motion pending. To such I do not subscribe.
Mr. Chief Justice Knauss and Mr. Justice Sutton have authorized me to state that they join in this dissent.