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Call Now: 904-383-7448The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction where no other legal remedy or relief is given. The granting or refusal thereof is governed by the same principles of right, necessity, and justice as apply to mandamus; provided, however, that no writ of prohibition to compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing.
(Orig. Code 1863, § 3136; Code 1868, § 3148; Code 1873, § 3209a; Code 1882, § 3209a; Civil Code 1895, § 4885; Civil Code 1910, § 5458; Code 1933, § 64-301; Ga. L. 2009, p. 643, § 2/HB 221.)
The 2009 amendment, effective July 1, 2009, deleted a comma following "jurisdiction" in the first sentence and added the proviso at the end of the second sentence.
- The language of this Code section is derived in part from the decisions in Seymour v. Almond, 75 Ga. 112 (1885) and City of Macon v. Anderson, 155 Ga. 607, 117 S.E. 753 (1923).
Petition for writ of prohibition must be filed in the appropriate superior court, and not in an appellate court, but the final decision of the superior court may be appealed to the Supreme Court for review. Carey Can., Inc. v. Head, 252 Ga. 23, 310 S.E.2d 895 (1984).
Office of writ of prohibition is to restrain subordinate courts from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the Constitution and laws of the state, it has been entrusted. Wright v. Wood, 178 Ga. 273, 173 S.E. 138 (1934); Dover v. Greer, 180 Ga. 110, 178 S.E. 297 (1934).
Prohibition is a writ to prevent a tribunal possessing judicial powers from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction in matters of which it has cognizance. Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).
Writ of prohibition lies to arrest or prevent performance of official act unauthorized by law, but does not lie to relieve against the consequence of such an act. Pope v. Colbert, 95 Ga. 791, 22 S.E. 703 (1895); Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).
Writ of prohibition is available only where there is lack of jurisdiction of subject matter, or where the act complained of was in excess of the jurisdiction of the court or tribunal, and it will be presumed that the processioners, having jurisdiction of the subject matter, in passing upon their own jurisdiction will not act beyond their proper legal functions. Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).
Writ of prohibition will not be granted in case where applicant is afforded any other legal remedy. Heaton v. Hooper, 134 Ga. 577, 68 S.E. 297 (1910).
The general rule is that prohibition will not lie if any other adequate remedy is available. Buie v. Buie, 175 Ga. 27, 165 S.E. 15 (1932).
The writ of prohibition is never granted where there is any other legal remedy. Wright v. Wood, 178 Ga. 273, 173 S.E. 138 (1934); Dover v. Greer, 180 Ga. 110, 178 S.E. 297 (1934).
Writ will not be granted where there was complete remedy by certiorari. Turner v. Mayor of Forsyth, 78 Ga. 683, 3 S.E. 649 (1887); Hudson v. Preston, 134 Ga. 222, 67 S.E. 800 (1910); Heaton v. Hooper, 134 Ga. 577, 68 S.E. 297 (1910); Cunningham v. Rachaels, 146 Ga. 682, 92 S.E. 208 (1917).
Writ of prohibition is not generally available for relief of grievances which may be redressed in ordinary judicial proceedings, and when the ordinary and usual remedies provided by law are applicable and available. Shantha v. Municipal Court, 240 Ga. 280, 240 S.E.2d 32 (1977); Sacco v. State Court, 272 Ga. 214, 528 S.E.2d 514 (2000).
Writ of prohibition cannot be invoked merely because usual and ordinary remedy is indirect and inconvenient, and the writ should be granted only when it is apparent that the rights of the applicant cannot be adjudicated by any other remedy. It is not an appropriate remedy for testing the constitutionality of the law. Buie v. Buie, 175 Ga. 27, 165 S.E. 15 (1932).
- It is only when there is something in the nature of the action or proceeding that makes it apparent that the rights of the parties litigant cannot be adequately protected by any other remedy than by the writ of prohibition that the writ should be granted. Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).
- A rule for contempt against person refusing to submit to arrest, issued by justice of peace was enjoined by writ of prohibition. Ormond v. Ball, 120 Ga. 916, 48 S.E. 383 (1904).
- Petitioner, who had been imprisoned for eight months after a civil contempt hearing for which there was no transcript or brief of the evidence, and who had otherwise exhausted available remedies, was entitled to the protection of the writ of prohibition. Russell v. Evans, 260 Ga. 754, 400 S.E.2d 11 (1991).
- The writ will lie to prevent judge of the probate court, who has appointed a lunacy commission to determine the sanity of one indicted for crime and set a time for the hearing, from proceeding further therewith. State ex rel. Graham, 135 Ga. 259, 69 S.E. 115 (1910).
Fact that party fears court will not obey laws would hardly justify an injunction in the nature of a writ of prohibition to stop it from carrying its judgment into effect. Mayor of Americus v. Mitchell, 74 Ga. 377 (1884).
- The writ of prohibition lies only to restrain the unlawful exercise of judicial functions by an inferior tribunal, acts of an administrative or of a legislative character not falling within its providence. Doughty, Pearson & Co. v. Walker, 54 Ga. 595 (1875); Fite v. Black, 85 Ga. 413, 11 S.E. 782 (1890).
- Because the State, in the person of the District Attorney, attempted to avoid the restrictions in O.C.G.A. § 5-7-1 et seq., by attacking by way of mandamus and prohibition an alleged magistrate court policy concerning rulings made in criminal prosecutions, and because the State had no ability to appeal the policy, the trial court erred by considering the State's petition for mandamus and prohibition. Magistrate Court v. Fleming, 284 Ga. 457, 667 S.E.2d 356 (2008).
No writ of prohibition will lie against a grand jury since it is not an inferior court. Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).
Where a court of inquiry has been held and a prisoner bound over to the grand jury, a writ of prohibition will not lie to restrain the committing court, the grand jury, and the district attorney from taking further action until another court of inquiry is held. Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).
District attorney cannot be classified as an inferior court so as to be subject to a writ of prohibition. Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).
- The defendant filed a suit for mandamus and prohibition against the solicitor and the judge to whom the defendant's case was assigned, seeking the solicitor's compliance with the defendant's requests for discovery, as well as a continuance of the criminal proceedings against the defendant until the solicitor complied with the defendant's discovery requests. Since the court was under no duty to grant a continuance and the solicitor was under no duty to provide discovery, such extraordinary relief was not authorized and the court correctly dismissed the petition for failure to state a claim. Scott v. McLaughlin, 258 Ga. 407, 369 S.E.2d 257 (1988).
- Supreme Court of Georgia concludes that case law supporting that a mandamus action can be barred by gross laches is the correct rule; thus, Crow v. McCallum, 215 Ga. 692 (1960), and its progeny were wrongly decided and overruled. Marsh v. Clarke County Sch. Dist., 292 Ga. 28, 732 S.E.2d 443 (2012).
Cited in Coleman v. Glenn, 103 Ga. 458, 30 S.E. 297, 68 Am. St. R. (1898); Templeman v. Jeffries, 172 Ga. 895, 159 S.E. 248 (1931); Burgess v. Friar, 183 Ga. 386, 188 S.E. 526 (1936); Henry v. State, 214 Ga. 527, 449 S.E.2d 79 (1994).
- 63C Am. Jur. 2d, Prohibition, §§ 41, 42, 57.
- 72A C.J.S., Prohibition, § 1 et seq.
- Prohibition as proper remedy to prevent enforcement of judgment which has been reversed or modified on appeal, or from which an appeal, with supersedeas or stay, is pending, 70 A.L.R. 105.
Writ of prohibition, 77 A.L.R. 245.
Right of court upon application for prohibition to consider issues of fact dehors the record in the inferior court, 99 A.L.R. 984.
Prohibition as remedy in case of defective indictment, information, or complaint, 102 A.L.R. 298.
Constitutionality of statute as proper question for determination in prohibition proceeding, 113 A.L.R. 796.
Provisional or alternative writ or order to show cause as condition of granting peremptory or absolute writ of prohibition or mandamus, 116 A.L.R. 659.
Prohibition as available remedy to restrain performance of a ministerial act by a judicial officer, 117 A.L.R. 1398.
Assumption of jurisdiction by court before completion of administrative procedure as ground of prohibition, 132 A.L.R. 738.
Other remedies as adequate or inadequate for purposes of an application for a writ of prohibition against contempt proceedings, 136 A.L.R. 715.
Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.
Prohibition to prevent multiplicity of proceedings, 159 A.L.R. 1283.
Mandamus or prohibition as remedy to enforce right to jury trial, 41 A.L.R.2d 780.
Availability of writ of prohibition to prevent illegal or unauthorized taking of depositions, 73 A.L.R.2d 1169.
Availability of mandamus or prohibition to review order of reference to master or auditor, 76 A.L.R.2d 1120.
Prohibition as appropriate remedy to restrain civil action for lack of jurisdiction of the person, 92 A.L.R.2d 247.
Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case, 92 A.L.R.2d 306.
Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case, 93 A.L.R.2d 802.
Prohibition as appropriate remedy to restrain civil action for lack of venue, 93 A.L.R.2d 882.
Availability of mandamus or prohibition to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229.
Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.
Judgment granting or denying writ of mandamus or prohibition as res judicata, 21 A.L.R.3d 206.
Availability of writ of prohibition or similar remedy against acts of public prosecutor, 16 A.L.R.4th 112.
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