(dissenting).
I dissent.
Criticism of the trial court for failing to hire a lawyer and defend himself is not justified. A writ of certiorari commands the party to whom it is directed to furnish a transcript of the record and proceedings so they may be reviewed by the court. SDCL 21-31-4. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment either affirming or annulling or modifying the proceedings below. SDCL 21-31-7.
In this case, no written order was entered appointing Mr. Ellison, nor was there any written order barring him from any further representation or contact of Ms. Richard. There was a ruling from the bench * but no order. SDCL 15-26A-7 provides that the Supreme Court may review a ruling or determination of the trial court “on appeal from & judgment.” (Emphasis supplied.) This statute has no application to the instant action, however, because there was no appeal nor was there a judgment entered. If counsel wished to make a record, findings of fact should have been presented and a written order entered. This is not a case where the exigencies of the moment preclude the entry and service of a written order as discussed in Karras v. Gannon, 345 N.W.2d 854 (S.D.1984). Rather, Karras holds a written order *437should have been entered under the facts of the present case. Perhaps the trial court may have reconsidered had the record been completed. In the absence of an order, there is nothing for the court to review. As to this, SDCL 15-6-58 provides that “an order becomes complete and effective when reduced to writing, signed by the court or judge, attested to by the clerk and filed in his office.” We delineated the 'rationale for this requirement early on in the case of Union Sav. Ass’n v. Somers, 40 S.D. 177, 166 N.W. 638 (1918), stating:
The reason for the rule requiring that an order be entered of record in some form before it becomes effectual as an order is that there shall be no uncertainty as to the existence and exact purport of such order, and that there be some reliable and available means of determining its existence and purport. An order, under our statute as it exists at this time, is deemed to be entered when formally prepared, signed by the court or judge, attested by the clerk, and filed in his office. Until all these things have been done it is not an effective order.
40 S.D. at 179-80, 166 N.W.2d at 638. See also Estate of Hofer, 90 S.D. 140, 238 N.W.2d 496 (1976); Foss v. Spitznagel, 77 S.D. 633, 97 N.W.2d 856 (1959); Stephens v. Fans, 20 S.D. 367, 106 N.W. 56 (1906). The writ of certiorari is similar to the writ of error, in that it will not lie where the matter is undisposed of by the lower court and nothing in the nature of a final order or adjudication has been entered. Territory v. District Court, 4 Dak. 308, 30 N.W. 145 (1886).
Assuming the decision of the trial court is construed as an order, certiorari is not the proper remedy. The majority seeks to buttress their lack of jurisdiction theory upon the proposition that SDCL 23A-5-14 provides the only grounds for removal of a grand jury witness’ attorney. First of all, the terminology providing for removal “to ensure that the activities of a grand jury are not unduly delayed or impeded” is broad enough to cover a multitude of situations, including a fast to avoid incarceration employed to coerce testimony before a grand jury. Nonetheless, the court should not be restricted to the broad terminology of the statute. Should grossly incompetent counsel be permitted to proceed as long as the activities of the grand jury are not delayed or impeded? As to this, trial courts have many inherent powers and responsibilities in the administration of justice, and not just those enumerated in a statute as the majority seems to hold. The trial court did conduct a hearing in which evidence was presented upon which it issued a ruling.
SDCL 21-31-8 provides: “The review upon writ of certiorari cannot be extended further than to determine whether the inferior court ... has regularly pursued the authority of such court[.]”
When such courts, officers, boards or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law. State v. State Board of Assessment and Equalization, 3 S.D. 338, 53 N.W. 192 (1892). Under certiorari we will not consider matters outside the record. State v. Costello, 36 S.D. 76, 153 N.W. 910 (1915).
Save Centennial Valley Ass’n, Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979). See State v. Tschetter, 337 N.W.2d 829 (S.D.1983).
It seems quite elementary that the jurisdiction of a court is not destroyed by making a finding of fact contrary to the clear preponderance of the evidence. Such errors, if they exist, cannot destroy jurisdiction, and therefore certiorari is not the remedy to determine whether or not they do exist. Unless by virtue of special and express statutory provision, certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding, at least in the absence of fraud, or willful and arbitrary disregard of undisputed and indisputable proof wherein credibility of witnesses is not involved. National, etc., Co. v. Hirning, 40 S.D. 448, 167 N.W. 1055; *438Austin v. Eddy, 41 S.D. 640, at page 648, 172 N.W. 517; Southwest Branch, etc., v. Dakota Central Telephone Co., 53 S.D. 121, 220 N.W. 475.
State v. Circuit Court of Minnehaha County, 58 S.D. 152, 158, 235 N.W. 509, 511 (1931).
A court has power to remove a grand jury witness’ attorney and order the witness to obtain a new counsel when it finds that such removal and replacement is necessary to ensure that the activities of the grand jury are not unduly delayed or impeded. SDCL 23A-5-14.
The trial court believed Ellison was orchestrating the fast to secure petitioner’s release from jail, and thereby avoid the court’s order that she testify.
A trial judge may “in the interest of justice” substitute one counsel for another. D.C.Code 1977 Supp., § 11-2603. Gross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court’s removal of an attorney, even over the defendant’s objection. See, e.g. United States v. Dinitz, [538 F.2d 1214, 1219 (5th Cir.1976).]
Harling v. United States, 387 A.2d 1101, 1105 (D.C.1978); see also Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); 3 A.L.R.4th 1218 (1981).
Once an attorney has been chosen by the trial court or the accused, and an attorney/client relationship has been established, the court may not arbitrarily remove the attorney over the objections of both the defendant and his counsel. English v. State, 8 Md.App. 330, 259 A.2d 822 (1969); McKinnon v. State, 526 P.2d 18 (Alaska 1974); Smith v. Superior Court of Los Angeles County, 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 (1968) (en banc).
While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice.
In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434, 438-39 (1962).
In my opinion, the trial court erred, but certiorari should not be granted.
On October 12, 1984, the trial court stated:
I can find reasonable grounds to believe Mr. Ellison’s further involvement in this case may in fact represent a danger to Ms. Richard ... I am taking this opportunity upon the record that is present in this particular matter to bar Mr. Ellison from any further representation or contact of Ms. Richard.
Later that day, when asked to reconsider, the trial court stated:
As it relates to the decision this morning, Mr. Ellison’s assertion that my actions are based on assumptions, I think the records establishing circumstances which the court cannot ignore, and are not merely assumptions on my part, the order barring Mr. Ellison is still in force and effect and will continue to remain so.