Page:North Dakota Reports (vol. 48).pdf/458

 search warrant has been issued by a justice of the peace or other magistrate. Our statutes provide :

"A search warrant must be executed and returned to the magistrate by whom it was issued within ten days." § II139, C. L. 1913.

"The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken." § 1I141I, C. L. 1913.

"The magistrate must annex together the depositions, the search warrant and return and the inventory, and return them to the next term of the district court having authority and jurisdiction to inquire into the offense in respect to which the search warrant was issued, at or before its opening on the first day." § 11146, C. L. 1913.

If the papers required to be returned by a magistrate to the district court are not so returned, there can be no question but the district court has power to require the magistrate to forthwith transmit such papers to the district court. When the magistrate makes such return to the district court, of course, jurisdiction is transferred to that court, and it becomes vested with jurisdiction in the matter, and doubtless has power to make proper disposition of the property seized under the search warrant. If it should appear that the return made is incomplete and that the magistrate has not returned all the papers, the district court doubtless has power to require the magistrate to make a more complete return.

From the petition for the writ of prohibition in this case it appears that the search warrant was issued by the justice of the peace on May 16, 1921, and that it was executed by the police officer and returned by him to the justice of the peace on that same day; also that "the search warrant and affidavit" on which it was issued were returned to and filed with the clerk of the district court on August 10, 1921. In these circumstances it seems to me that a writ of prohibition will not, lie. Such writ is not a process for the correction of errors. Even the improper decision of a jurisdictional question is not ground for the writ where the inferior court had jurisdiction to determine that question. 23 A. & E. Ency. L. 203. The writ does not lie merely because the inferior court makes or is about to make an erroneous decision relating to the remedy where it has general jurisdiction of the subject-matter and the remedy which is being invoked.

Spelling says:

"The plain import of all the authorities is that, if the inferior tribunal