10 Mo.App. 540 (Mo.App. 1881), State ex rel. Boeckler v. Thayer

Citation:10 Mo.App. 540
Opinion Judge:BAKEWELL, J.
Party Name:STATE OF MISSOURI, AT THE RELATION OF A. BOECKLEB ET AL., v. A. M. THAYER, JUDGE, Respondent.
Attorney:GIVEN CAMPBELL, for the relators. H. D. WOOD and T. J. PORTIS, for the respondent.
Case Date:June 28, 1881
Court:Court of Appeals of Missouri
 
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Page 540

10 Mo.App. 540 (Mo.App. 1881)

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, 1881

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.

OPINION

BAKEWELL, J.

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...

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