I concur, although I doubt whether the order of the court was beyond or in excess of jurisdiction. Of course, it is our duty to determine whether or not we shall issue the writ. But when neither side raises the question of the propriety of the writ but questions only the merits and the question of whether a departure from the line of sound and legal action is only error or a departure of such moment as to amount to stepping outside of jurisdiction depends on philosophical niceties of distinction, I hardly think it is our duty to split hairs, especially when nothing less than a sword of prohibition may serve to cut the legal Gordian knot. I doubt whether the excerpts in the prevailing opinion regarding discretion were meant to pertain to cases where there was only error. They touched a situation where it was determined there was lack or excess of jurisdiction, yet this court would still exercise discretion in issuing the writ unless there was no other remedy. I refer to the opinion ofAtwood v. Cox, 88 Utah 437, 55 P.2d 377, for a discussion of the distinction between error which involves a wrong assumption of jurisdiction and error which does not. The author there called attention to the difficulty in some cases of distinguishing between the two conceptions running, at times, *Page 163 to the well-nigh impossible. He also stated that at times it was necessary for the review court to arrest action by the lower court where only error in the exercise of legal power was involved when the consequences would be irremedial if the lower court were permitted to continue in its course; and that in those cases, because of the lack of any writ by which interlocutory orders could be brought up for review except under the guise of being beyond or in excess of jurisdiction, the review courts benignly stretched the conceptions of jurisdiction to include treatment of them with consequent confusion and contradiction in conception and in cases. This seems to be such a case. The lower court wrongly holds that plaintiff was bound to appear in response to the notice merely and makes as a condition for defendant to answer, the fulfillment by said plaintiff of such wrongfully held obligation. There the case remains.
I see no way to get it forward. Prohibition, as certiorari, equally involves only jurisdictional questions. Mandamus could hardly lie because it is designed to require the court to act but not in a specific manner unless there is only one possible way for it to act. The court could not be mandamused to go ahead with this case until the barrier is removed. Perhaps it might be mandamused to remove that barrier, i.e., to cancel its order permitting the defendant to delay answering until ten days after plaintiff appears for his deposition. If so, it amounts to a mandamus to do a very specific act, i.e., make an order vacating an order. If this is the only possible way it could legally act in reference to its former order, it might be arguable that mandamus would lie. But it would require this court to decide in a mandamus action, not merely the question of whether the court refused to act or proceed, but the legal question of how it should act. This hardly smacks of mandamus.
Reverting for the moment again to the question as to whether the court's action in permitting answer to be made only in the event of the contingency that plaintiff appear for deposition, let us test it by the known rules. The test *Page 164 of jurisdiction as stated in the Atwood Case is, does the court speak by warrant of law — not whether it speaks correctly. That always requires a preliminary inquiry in regard to the matter as to which it is speaking. In this case, when the court issued that order it was speaking in regard to the matter of fixing a time to answer. In overruling a demurrer, it has power to speak in that regard and speaks by warrant of law. Because it annexes an erroneous condition or erroneously annexes a condition as a part of the order would seem not to make it speak any the less in regard to that matter.
The view might be taken that such condition was in excess of its jurisdiction or, in other words, that it did not speak by warrant of law when it injected that condition as part of its order after erroneously deciding that plaintiff was bound to appear for his deposition. But by the same token the wrong part of any order made consequent on some erroneous legal viewpoint might be said to be in excess of jurisdiction. This brings the discussion down to the point almost of distinguishing between the deciding by the court on the one hand, and the acting by the court in pursuance of such decision on the other. That is, it was merely error wrongly to decide, but in excess of jurisdiction to act on the decision by making the condition a part of the order. Almost every decision of the court involves an order or some judicial action. The distinction is too metaphysical.
Perhaps the distinction between mere error and excess of jurisdiction may lie in determining whether the court had or had not any power to annex any condition to the requirement of answering the complaint. It would seem that under certain circumstances the court could correctly make the requirement of answering depend on a condition. This power is inherent in its control and supervision of the case. Some situation may arise where, independent of statute, the court might make further pleading by a party subject to some requirement by the adverse party. I can conceive of cases where it might almost be necessary to require *Page 165 such requirement in order that the adverse party might properly plead. If, therefore, it is true that the answer or other pleading may be deterred by the court on condition that the adverse party fulfill some requirement, I can hardly see how it becomes excess of jurisdiction rather than just error where the condition imposed was not a proper one. The matter in reference to which the court would be speaking would be a matter in regard to which the law gave it warrant to speak. The fact that it speaks erroneously in so pursuing the matter over which it had jurisdiction should not transmute such error into excess of jurisdiction.
Certainly if a subpoena had been issued, signed by some person who purported to be a deputy clerk, and the plaintiff had not appeared, and this resulted in raising the question as to whether the subpoena was a proper one, which in turn depended upon the question of whether the person who issued it was really a deputy clerk and the court erroneously decided he was, and therefore made answer contingent on plaintiff's obeying such subpoena, would it be said that the lower court, upon this court finding that the person issuing the subpoena was not a deputy clerk, had acted not merely erroneously but in excess of its jurisdiction? I surmise not. Several times I have intimated that there is need for some writ which will bring before this court certain intermediary or interlocutory orders to be issued when such order would do irremediable harm or cause an impasse as in this case even though the making of the order was only error and not jurisdictional. Until some mechanism is so provided, I must continue to concur or decide that certiorari and prohibition are proper remedies in such cases, though to my mind the court may not have acted beyond or in excess of jurisdiction. *Page 166