
    CHARLES DUCHENEAU, Respondent v. ELWIN A. IRELAND and another, Appellants.
    
      Vide People v. House, 4 Utah, 369.
    Pkohibition. — Writ of prohibition will be issued only where there is no plain, speedy and adequate remedy at law. »
    In. — Execution upon Docketed Judgment of a Justice of the Peace.- -Where a transcript of a judgmont of a Justice of the Peace was. filed in the district court under section 784, code of civil procedure, and execution issued thereon out of the district court, and the judgment and execution were regular upon then-face, a writ of prohibition against officer from enforcing the execution will not lie, the officer acting in accordance with his legal authority.
    Id. — Adequate Remedy at Law. — Where execution was issued as above, upon an erroneous judgment of Justice of the Peace, the remedy was by motion in the district court to quash the execution, and prohibition will not lie.
    Appeal from a judgment of the district court of the first district. The opinion states the facts.
    
      Mr. Charles S. Varum for appellants.
    
      Mr. James N. Kimball for respondent.
   Boreman, J.

On the thirtieth day of March, 1885, D. P. Tarpey and Henry Phillips filed a complaint with a justice of the peace against said Charles Ducheneau for trespassing upon land. A summons was on that same day issued and served. On the fourth day of April following, the justice rendered judgment by default against said Ducheneau for $169.12, and costs. On that same day, but after the entry of the judgment, said Ducheneau filed his answer therein. After-wards said Ducheneau sued out a writ of cariiorari, and from the judgment of the district court vacating the judgment of the justice an appeal was taken to this court, where the judgment of the district court was reversed and the cause remanded, with directions to the district court to quash and dismiss tbe writ of certiorari. Upon tbe filing of tbe remittitur in tbe district court tbe writ was accordingly dismissed; and thereupon tbe judgment of tbe justice was docketed in tbe office of tbe clerk of tbe district court, and execution issued thereon. A writ of prohibition was then sued out by said Ducheneau from tbe district court, against tbe United States marshal and one of bis deputies, wherein judgment was given in favor of said Ducheneau, prohibiting tbe officers from enforcing tbe execution, and from such judgment this appeal was taken.

Tbe writ of prohibition may issue to arrest proceedings which are without or in excess of tbe jurisdiction of tbe officer purposing to do some objectionable thing; but it can only issue where there is not a plain, speedy, and adequate remedy in tbe ordinary course of law. Under tbe act of congress of 1874, commonly known as tbe “Poland Act,” it is the duty of tbe United States marshal “to serve and execute all process and writs issued out of” the district court. Tbe territorial statute which authorizes tbe docketing of tbe justice’s judgment with tbe clerk of tbe district court authorizes “that execution may be issued thereon by the district clerk” to tbe United States marshal, and “in the same manner and with like effect as if issued on judgments of tbe district court.” Code Civil Proc. Sec. 784, (Laws of Utah, 1884, p. 298.) The judgment of tbe justice thus docketed with tbe district clerk did not thereby technically become the judgment of the district court People v. Doe, 31 Cal. 220; Martin v. Mayor, etc., of N. Y., 20 How. Pr. 86; Martin v. Mayor, etc., of N. Y., 11 Abb. Pr. 295. But for the pupose of issuing and controlling the execution it is in effect the judgment of the district court under the territorial statute referred to. The objects, among other things, of filing and docketing the judgment with the clerk of the district court is to obtain the process of the district court to enforce it, and to secure such enforcement through the ministerial officers of that 'court. The issuance, therefore, and the enforcement of the execution, are district court matters, and as much so as if the judgment had been rendered in the district court. The judgment and execution were regular upon their face, and their validity was not in question. So far, therefore, as appears upon the papers, there is nothing to show that the marshal or his deputy was acting in excess of or without their jurisdiction.

When this case was formerly before us, on another appeal, it was decided that the judgment was erroneous. It was not held to be void, and we do not deem it to have been void, on the case as then made. It was contended then that the judgment of the justice was void for the reason that the summons required the defendant in that action to appear sooner, and that the judgment was rendered sooner than the statute authorized. The summons was regularly served on the defendant in the action, and from the time of such service the justice had jurisdiction of the party defendant; and the subsequent proceedings of the justice, so far as anything appeared in.that appeal, were not void, however erroneous they may have been. Sims v. Gray, 5 Reporter, 504; Ballinger v. Tarbell, 16 Iowa, 492; Town of Lyons v. Cooledge, 89 Ill., 529; Freem. Judgm. 126; Whitwell v. Barbier, 7 Cal., 63; Ducheneau v. House, 4 Utah, 369.

The d efendant in that action was treated as having an adequate remedy in the ordinary course of law by appeal. On the case as there presented we see no reason for changing the ruling. But in the case as now presented our attention is called to the nature of the answer filed by the defendant in that action before the justice, which is alleged to have put in issue the title to real estate. The settlement of the title to real estate is not within the jurisdiction of a justice of the peace, and where in airy controversy before a justice, the title to real estate “in anywise comes in question,” the justice is ousted of jurisdiction in the case, and all of his actions looking to the enforcement of the judgment are utterly void. When an answer is filed putting in issue the title to real estate, the justice’s duty is to suspend all further proceedings and certify the pleadings to the district court as provided in the Territorial statute. Sec. 707 Code Civ. Proced. Laws of 1884, p. 286. Instead of so certifying the case, the justice furnished a transcript of the judgment to the plaintiffs in the case and they caused it to be filed with tbe clerk of tbe district court, and upon it execution issued. Tbe question arises whether there is for tbe defendant in that action any remedy in tbe ordinary course of law.

If the answer was presented to tbe justice for filing within tbe time required by statute and tbe title to real estate was put in issue by it, and tbe time for appealing from tbe judgment has expired, w'e are yet of tbe opinion that there is a plain and adequate remedy by way of motion in the district court. This remedy is urged by tbe appellants as plain and adequate and it appears to us to be such. Mayo v. Bryte, 47 Cal. 626, Code Civil Proced. Sec. 52, Subdiv. 5 and 8.

Tbe officer who has tbe execution is tbe ministerial officer of tbe district court out of which tbe execution is issued, and in all matters concerning tbe execution he is under its control, and tbe execution is itself under tbe control of that court. Por this reason, therefore, we deem - that an independent action is unnecessary, as there is tbe remedy by motion, whereby the execution may be quashed, if a proper showing be made, and proper relief may be granted.

Tbe judgment of tbe distrct court is accordingly reversed with costs to appellant.

Zane C. J. and Henderson J. concurred.  