From these considerations, even if mandamus were conceded to be a proper remedy, where the right of appeal exists, still it seems clear that we ought not entertain jurisdiction and issue the writ, unless it be made to appear to the satisfaction of the court that, in the particular case, there is an urgent necessity for our doing so, or unless there is some exigency presented which renders it apparent that the interest of justice requires the interposition of the power. The case at bar presents no such necessity or exigency, the remedy by appeal being entirely adequate to meet the ends of justice. In such a case mandamus is not the proper remedy. This is true in view of judicial decision as well as of the statute, which, in Sec. 3642, R. S., in reference to mandamus, provides: "This writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law." It will be observed that this provision requires the writ to be issued only where there is no "plain, speedy, and adequate remedy in the ordinary course of law." It is apprehended that no one seriously doubts that an appeal is such a remedy where there is a final judgment, and we have seen that in the case at bar the decision of the court made, in the exercise of judicial discretion, upon the plea to the jurisdiction is a final judgment, and that under our constitution the prosecution is not precluded from exercising the right of appeal. Under such circumstances, mandamus is not a proper remedy, and will not lie. "Mandamus will not lie when there is a remedy by appeal or writ of error; that is, it will not take the place of an appeal or a writ of error, and is not the proper remedy to be resorted to to compel an inferior court or judicial tribunal to reverse a decision already made; and the writ does not lie to revise judicial action. The relator must show that he can not appeal, to make out a right to a mandamus.” 13 Ency. Pl. & Pr., 530. In the case of the People v. Garnett, 130 Ill., 340, Mr. Justice Magruder, delivering the opinion of the court, said: "A mandamus will not be issued by a superior to an inferior court for the purpose of controlling the latter in the exercise of its judicial judgment or discretion. Where one of the appellate courts of this State dismisses an appeal to it from a circuit court for want of jurisdiction, it thereby judicially determines a question incident to the proceedings and properly arising therein; in passing upon the question it acts in a judicial capacity, and, therefore, mandamus will not lie to compel the reinstating of the appeal." In State v. Judges, 38 La. Ann., 97, the supreme court of Louisiana held that, "mandamus will not lie to compel an inferior judge to proceed to the trial of an appealable case which he has dismissed by sustaining a plea to his jurisdiction. The remedy is by appeal." So, in ex parte Hoard, 105 U. S., 578, Mr. Chief Justice Waite, speaking for the court, said: "It is an elementary principle that a mandamus can not be used to perform the office of an appeal or a writ of error." In the case of In re Pennsylvania Co., 137 U. S., 451, Mr. Justice Bradley said: "It is true that after a case has proceeded to the filing of a declaration and a plea to the jurisdiction, or its equivalent, and a judgment is rendered in favor of the plea and a consequent dismissal of the action, this court has held that the plaintiff is confined to his remedy by writ of error, and can not have a mandamus, which only lies, as a general rule, where there is no other adequate remedy." High on Ex. Legal Rem., Secs. 19, 252; Merrill on Mandamus, Secs. 202, 203; People v. Weston, 28 Cal., 640; State v. Smith, 19 Wis., 558; Ex parte Baltimore & O. R. R. Co., 108 U. S., 566; Ex parte Railway Co., 103 U. S. 794; People v. Judges, 20 Wend., 658; Commonwealth v. Thomas, 163 Pa. St., 446; Er parte Mc Kissack, 107 Ala., 493; Strong v. Grant, 99 Cal., 100; People v. Superior Court, 114 Cal., 466. Counsel for the plaintiff cites, as authority for making the application herein, the case of State v. Hart, 57 Pac. Rep., 415, which was recently decided by this court. It is true, there we issued the writ of mandate, but that case is clearly distinguishable from this. There the judge refused to proceed with the trial, that is, refused to act, claiming that he had no jurisdiction, which refusal is shown by the facts, and appears from the opinion of the court wherein Mr. Justice Miner, delivering the same, said: "The record shows that the presiding judge refused to impanel a jury of twelve persons to hear and try the case, and declined to proceed to the hearing of said cause, because the court had no jurisdiction to impanel a jury, and that to do so would be contrary to law." No judgment of dismissal was entered or any decision made from which the State could appeal. In this case, as appears from the affidavit upon which the alternative writ was issued, the court did not refuse to act, but proceeded to hear a distinct branch of the case, a plea to the jurisdiction, which was properly before it, and judicially determined that it had no jurisdiction to try the cause upon its merits, then entered a judgment of dismissal, and discharged the prisoner and bail, the same being a final judgment, from which the State has the right of appeal. The former case is similar to State v. Smith, 19 Wis., 558, where the application for a peremtory writ of mandamus was denied, and where Mr. Chief Justice Dixon, speaking for the court, said: "The affidavit shows only that the county court refused to proceed with the trial. To lay the foundation for such an application, it should appear that the court refused to take any action. For though the court refused to try the case for want of jurisdiction, it still might not refuse to dismiss it for the same reason, and if dismissed the relator would have his remedy by appeal from the judgment or order of dis missal." State v. Hart can not avail the plaintiff in this case. Nor do we think Pace v. Van Tassel, 13 Utah, 9, is in point as a controlling authority. The facts and conditions. which controlled in the latter case are not at all similar to those in this, nor was there any holding that the writ of mandate would lie where there is a plain, speedy, and adequate remedy by appeal. Since we are of the opinion that, under the circumstances of this case, the State has the right of appeal, and that mandamus will not lie, it becomes unnecessary to decide any other question presented. The demurrer to the petition must be sustained, the motion to quash the alternative writ granted, and a peremptory writ denied. It is so ordered. MINER, J., and BASKIN, J., concur. 21 Utah.-7 LEONA COATES CROOKS,' PLAINTIFF, v. THE CERTIORARI - WHEN WILL NOT LIE-ACTION COMMENCED IN JUS- Under the provisions of Art. 8, Sec 9, of the constitution, the decision of a district court, on appeal from a judgment of a justice of the peace, is final, whether it be on a motion to dismiss, or on the merits of the cause, and the supreme court has no power to review such decision either by appeal or by certiorari. BASKIN, J., dissenting." (Decided Dec. 6, 1899.) Original application for a writ of certiorari to review the action of the Fourth Judicial District Court in dismissing a certain appeal. Writ Denied. Grant C. Bagley, Esq., and Messrs. King, Burton & King, for petitioner. It is argued that Sec. 9, of Art. 8, of our constitution, prohibits the supreme court from reviewing any action of the district, no matter how wrongful, illegal, or arbitrary, if it concerns matters arising in justice's courts. We deny this proposition, but concede that with reference to those matters properly before the district court, from the lower court, and of which it has jurisdiction, its action, when conformable to law and the regular procedure, is final. 1 See Eureka City v. Wilson, 15 Utah, 53 2 See State v. Hart, 19 Utah, 438. |