State v. Homer

Decision Date12 July 1910
Citation130 S.W. 510,150 Mo. App. 325
PartiesSTATE ex rel. MARY FRANCES REALTY CO. v. HOMER, Judge.
CourtMissouri Court of Appeals

Glendy B. Arnold, for petitioner. Edward W. Foristel, for respondent.

NORTONI, J.

This is an original proceeding in mandamus instituted in this court. An alternative writ was issued, and for return thereto the respondent filed a demurrer, on which pleading the matter is to be determined.

It appears the respondent, Hon. William B. Homer, is a judge of the circuit court of the city of St. Louis and presides over division No. 4 of that court. Having dismissed a case in which relator was plaintiff and Frank C. Deckmeyer was defendant as though the court over which he presided had no jurisdiction to proceed therewith, the present application for mandamus is to the end of requiring respondent, as the judge of such court, to reinstate the cause for judicial consideration. It appears relator, as plaintiff therein, instituted its suit for damages in the court of a justice of the peace of the city of St. Louis against Frederick C. Deckmeyer, defendant, on account of an alleged breach of a covenant of warranty for seisin contained in a deed conveying real estate. Due service of summons was had on defendant Deckmeyer therein. Both parties having appeared before the justice on the day set therefor, the trial of the cause proceeded, and upon its conclusion the justice certified the case to the circuit court of the city of St. Louis, under the statute, for the reason that it appeared title to real estate became an issue on the trial before him.

Our statute (section 3951, Rev. St. 1899 [Ann. St. 1906, p. 2173]), among other things, provides, substantially, if, in any action brought before a justice of the peace, the title to real estate appears to be an issue on the trial, the justice shall make an entry of such fact in his docket and certify the cause, together with all papers and process therein, to the clerk of the circuit court, and the cause shall be docketed and the circuit court shall be possessed of the same and proceed therewith without regard to the amount in controversy or any error in the decision of the justice in certifying the case to said court as if it were originally commenced therein. Another statute (section 3837, Rev. St. 1899 [Ann. St. 1906, p. 2126]) provides that no justice of the peace shall have jurisdiction to hear or try any action where the title to any lands shall come in question and be an issue. Under this latter section, the courts have declared in numerous cases that an action in damages for a breach of a convenant of warranty of title to real estate necessarily involves an issue of title to lands, and for that reason the justice court has no jurisdiction of such actions. Bredwell v. Loan & Investment Co., 76 Mo. 321; Patterson v. Yancy, 81 Mo. 379. It was in view of these statutes and decisions and under the authority thereof the justice of the peace certified the suit for damages for a breach of the covenant of warranty to the circuit court. After the cause thus reached the circuit court from the justice of the peace, it was duly assigned to division No. 4, over which the respondent, Judge Homer, presides, and set upon the docket for hearing in due course. Defendant in that cause thereupon appeared and moved the circuit court in writing to dismiss plaintiff's petition on the ground it had no...

To continue reading

Request your trial
18 cases
  • State ex rel. Kelley v. Mitchell
    • United States
    • Missouri Supreme Court
    • March 11, 1980
    ...Mo. 36, 149 S.W. 451, 452 (1912); State ex rel. Phelan v. Engelmann, 86 Mo. 551, 561 (1885); and State ex rel. Mary Frances Realty Co. v. Homer, 150 Mo.App. 325, 130 S.W. 510, 512 (1910). Perkins It is also true that mandamus is a proper remedy to determine the purely legal question of whet......
  • State ex rel. Hanlon v. City of Maplewood
    • United States
    • Missouri Court of Appeals
    • December 8, 1936
    ... ... 863, 869, 12 S.W.2d 462, ... 465. (b) But the true rule is that mandamus is a civil remedy ... which must be afforded in a proper case. Sections 1532-41, R ... S. 1929; State ex rel. City of Marshall v. Hackman, ... 274 Mo. 551, 558; State ex rel. Francis Realty Co. v ... Homer, 150 Mo.App. 325, 329. (7) As to matters of public ... right there is no discretion as to the issuance of the writ ... of mandamus, and every citizen has the right to invoke the ... writ to enforce the law. 38 C. J. 548, 839-40; Tapping on ... Mandamus, 287 (337); State ex rel. Ins. Co. v ... ...
  • Fenton v. Thompson
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ... ... defendant (appellant here) is aggrieved and has the right of ... appeal from the judgment below. Sec. 1111, R.S. 1939; ... State ex rel. v. Homer, 150 Mo.App. 325, 130 S.W ... 510; State ex rel. v. Newburg, 217 S.W. 605; ... Richards Brick Co. v. Wright, 231 Mo.App ... ...
  • Fenton v. Thompson
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ...defendant (appellant here) is aggrieved and has the right of appeal from the judgment below. Sec. 1111, R.S. 1939; State ex rel. v. Homer, 150 Mo. App. 325, 130 S.W. 510; State ex rel. v. Newburg, 217 S.W. 605; Richards Brick Co. v. Wright, 231 Mo. App. 946, 82 S.W. (2d) 274; State ex rel. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT