State ex rel. Boeckleb v. Thayer

Decision Date28 June 1881
Citation10 Mo.App. 540
PartiesSTATE OF MISSOURI, AT THE RELATION OF A. BOECKLEB ET AL., v. A. M. THAYER, JUDGE, Respondent.
CourtMissouri Court of Appeals

Mandamus will not lie to compel a trial judge to permit the filing of a pleading in a cause pending before him; though it is claimed that the relator can in no other way assert an alleged constitutional right.

APPLICATION for mandamus.

Writ denied.

GIVEN CAMPBELL, for the relators.

H. D. WOOD and T. J. PORTIS, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an application for a mandamus to be directed to one of the judges of the St. Louis Circuit Court, commanding him to permit an answer to be filed in a certain proceeding pending in that court. The issuing of the alternative writ was waived, and respondent demurs to the petition.

The petition sets out that the Missouri Pacific Railroad, on December 10, 1879, being then a corporation, etc., filed in the clerk's office of the Circuit Court of the Eighth Judicial circuit, a petition stating that it has become necessary for the purposes of the railroad, to acquire a public use in a certain block of ground in Carondelet, claimed to be owned by Adolph Boeckler and others (the relators of plaintiff in the present proceeding); that they have refused to relinquish the right of way; and that the road has been unable to agree with them for proper compensation, and has offered to pay full value, and praying for the appointment of commissioners to assess damages. Defendants in that proceeding, relators here, were duly served with notice and demurred to the petition on the ground that it did not set forth facts sufficient in law to warrant the relief prayed. The demurrer was overruled, whereupon the defendants in that proceeding, who are the relators of plaintiff herein, offered to file an answer, which is set out in full, denying that the appropriation of property sought by the railroad is for public use. The judge of the Circuit Court in which the proceeding was pending refused leave to file the answer. Plaintiff's relators excepted to this ruling, and they pray this court to issue the writ of mandamus to compel the circuit judge to permit the filing of this answer.

The rule is well established, both in Missouri and elsewhere, that appellate courts will not interfere by mandamus where the questions involved can be tried on appeal. It is not the province of this writ, which courts always grant with great circumspection, to correct errors of subordinate tribunals when acting within their jurisdiction. Nor does the fact that the decision bears oppressively upon the relator justify a departure from the rule. And though mandamus is never granted where another adequate remedy exists at law, the want of any such remedy by appeal or writ of error does not necessarily entitle the party aggrieved to this relief. The People v. Judges, 20 Wend. 658; Queen v. Blanchard, 13 Ad. & E. 318; 13 Pet. 404; 1 Denio, 679; The State ex rel. v. Judge, 1 Mo. App. 543; The State ex rel. v. Cooper, 64 Mo. 170; 50 Mo. 338; 27 Mo. 255.

With these principles, counsel for relator is familiar; and we do not understand him as controverting them. They seem to us to be fatal to the application. If we correctly understand him, his contention is this:--

The Bill of Rights provides (sect. 26), “that no private...

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4 cases
  • Fenton v. Block
    • United States
    • Missouri Court of Appeals
    • June 28, 1881
  • State v. Douglass
    • United States
    • Missouri Court of Appeals
    • June 20, 1904
    ...question, and therefore a writ of mandamus is not the remedy. State ex rel. v. St. Louis Circuit Court, 1 Mo. App. 543; State ex rel. v. Thayer, 10 Mo. App. 540; Gamble v. Gibson, Id. 329; Hurck v. Erskine, 45 Mo. 484. The rule is stated thus by High on Extraordinary Remedies, § 230: "That ......
  • Board of Com'rs of Shoshone County v. Mayhew
    • United States
    • Idaho Supreme Court
    • December 8, 1897
    ... ... (Ex parte McKissick, 107 Ala. 493, 18 So. 140; State v ... Judges First Circuit Ct. Appeals, 47 La. Ann. 1516, 18 ... So ... ...
  • State ex rel. Boeckler v. Thayer
    • United States
    • Missouri Court of Appeals
    • June 28, 1881
    ...10 Mo.App. 540 STATE OF MISSOURI, AT THE RELATION OF A. BOECKLEB ET AL., v. A. M. THAYER, JUDGE, Respondent. Court of Appeals of Missouri, St. Louis.June 28, Mandamus will not lie to compel a trial judge to permit the filing of a pleading in a cause pending before him; though it is claimed ......

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