O.C.G.A. § 9-6-40 (2019)

Annotations

JUDICIAL DECISIONS 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 Ga. LEXIS 565 (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 Ga. LEXIS 33 (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 Ga. LEXIS 338 (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 Ga. LEXIS 281 (1895); Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699, 1945 Ga. LEXIS 338 (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 Ga. LEXIS 782 (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 Ga. LEXIS 273 (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 Ga. LEXIS 180 (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 Ga. LEXIS 33 (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 Ga. LEXIS 52 (1887); Hudson v. Preston, 134 Ga. 222, 67 S.E. 800, 1910 Ga. LEXIS 159 (1910); Heaton v. Hooper, 134 Ga. 577, 68 S.E. 297, 1910 Ga. LEXIS 273 (1910); Cunningham v. Rachaels, 146 Ga. 682, 92 S.E. 208, 1917 Ga. LEXIS 439 (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 Ga. LEXIS 1475 (1977); Sacco v. State Court, 272 Ga. 214, 528 S.E.2d 514, 2000 Ga. LEXIS 262 (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 Ga. LEXIS 180 (1932). Writ only available where parties’ rights not otherwise protected. - 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 Ga. LEXIS 338 (1945). Writ may enjoin contempt citation by justice of peace. - 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 Ga. LEXIS 749 (1904). Writ available to petitioner who was imprisoned for civil contempt. - 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 Ga. LEXIS 34 (1991). Writ applicable to probate judge to stop sanity hearing. - 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 Ga. LEXIS 504 (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, 1885 Ga. LEXIS 312 (1885). Writ not applicable to legislative or administrative acts. - 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 Ga. LEXIS 275 (1875); Fite v. Black, 85 Ga. 413, 11 S.E. 782, 1890 Ga. LEXIS 58 (1890). Writ not applicable to magistrate court policy decisions. - 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 Ga. LEXIS 731 (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 Ga. LEXIS 782 (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 Ga. LEXIS 782 (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 Ga. LEXIS 782 (1971). Discovery, continuance in criminal proceedings unauthorized. - 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 Ga. LEXIS 264 (1988). Application of laches to mandamus. - 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 Ga. LEXIS 791 (2012).

RESEARCH REFERENCES Am. Jur. 2d. 63C Am. Jur. 2d, Prohibition, §§ 39 et seq., 49 et seq., 73 et seq. 63C Am. Jur. 2d, Prohibition, §§ 39 et seq., 49 et seq., 73 et seq. C.J.S. 72A C.J.S., Prohibition, § 1 et seq. ALR. 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.