767 S.W.2d 112 (Mo.App. S.D. 1989), 15952, State ex rel. Newton v. Conklin

Docket Nº15952.
Citation767 S.W.2d 112
Party NameSTATE of Missouri ex rel. Denver Wesley NEWTON, Jr., Relator, v. The Honorable J. Dan CONKLIN, Judge, 31st Judicial Circuit, Associate Division 2, Respondent.
Case DateMarch 22, 1989
CourtCourt of Appeals of Missouri

Page 112

767 S.W.2d 112 (Mo.App. S.D. 1989)

STATE of Missouri ex rel. Denver Wesley NEWTON, Jr., Relator,

v.

The Honorable J. Dan CONKLIN, Judge, 31st Judicial Circuit,

Associate Division 2, Respondent.

No. 15952.

Court of Appeals of Missouri, Southern District, First Division.

March 22, 1989

Robert W. Stillings, Springfield, for relator.

Darrell L. Moore, Asst. Pros. Atty., Springfield, for respondent.

Page 113

CROW, Presiding Judge.

This original proceeding in prohibition arises from an action under the Uniform Parentage Act ("UPA"), C.C.S.S.B. 328, Laws 1987, pp. 646-53, effective July 15, 1987, codified as §§ 210.817-.852, RSMo Supp.1987. Before discussing the issues confronting us it is necessary to set forth the relevant details of that action ("the underlying case").

Plaintiffs in the underlying case are B___ W___ B___ ("the child"), allegedly born in 1983, and his mother, T___ A___ B___. The relief sought by the plaintiffs in the underlying case includes an order declaring Denver Wesley Newton, Jr. ("Denver"), relator here, to be the child's father.

Denver, in his answer in the underlying case, denies paternity.

Faced with Denver's denial, plaintiffs filed a motion in the underlying case asking the trial judge to order plaintiffs and Denver to "submit to extended factor blood tests for the purpose of determining the probability of [Denver's] paternity of [the child]." The motion prayed, in pertinent part:

"2. That the blood samples be drawn, photographs be taken, and fingerprints be taken of said persons by an employee of Springfield Medical Laboratory[,] 609 Cherry, ... Springfield, Missouri....

3. That said blood samples be submitted to National Paternity Laboratories, Inc., 5698 Springboro Pike, Dayton, OH 45449, for analysis."

The trial judge conducted a hearing on the motion and took it under advisement. Ten days later Denver commenced the instant prohibition proceeding in this Court, alleging that the trial judge, respondent here, had advised counsel in the underlying case that respondent would grant the motion unless prohibited by an appellate court. Denver's petition in this Court pled four grounds. They are:

"a. The Motion to Compel Blood Tests and the proposed Order fail to meet the requirements of Missouri Supreme Court Rule 60.01(a) 1 in that the motion and order do not state the 'person or persons' by whom the blood tests are to be performed.

b. The Motion to Compel Blood Tests and the proposed Order fail to meet the requirements of ... Rule 60.01(a) in that the Court's Order would not be an order to submit to blood examinations 'by a physician or physicians.'

c. The Motion to Compel Blood Tests and the proposed Order fail to designate an expert as required by ... Section 210.834 (Supp., 1987). 2

d. The Trial Court failed to determine the qualifications of the expert as required by ... Section 210.834 (Supp., 1987)."

We issued an order directing respondent to take no further action on the motion for blood tests. Our order instructed respondent to show cause by a specified date why a preliminary order in prohibition should not be issued. Respondent filed nothing within the time allowed, so we issued a preliminary order in prohibition barring respondent from further action on the motion

Page 114

for blood tests and establishing a deadline for respondent's answer to relator's petition. Respondent filed a timely answer.

Relator's brief presents two points, each of which avers that respondent's "announced intention to sustain the motion to compel blood tests was error." In neither point, however, does relator contend respondent lacks jurisdiction to grant the motion. Whether, in such circumstances, relator is entitled to utilize prohibition as a means of testing the correctness of respondent's proposed order is a subject we must consider in determining whether our preliminary order should be made absolute.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), the Supreme Court of Missouri declined to utilize prohibition to stop a circuit court from proceeding to trial in a cause of action allegedly barred by the statute of limitation. The majority opinion in Morasch recognized that the constitutional limits on judicial authority to effect appellate jurisdiction are violated by overgenerous use of the writ of prohibition, and stated that the unfettered use of such device to allow interlocutory review of trial court error should not continue. Id. at 891. The opinion reasoned that inasmuch as the statute of limitation did not restrict the power of the circuit court but merely set up a condition precedent to the establishment of the cause of action, the decision of the circuit court to proceed to trial constituted an error of law rather than an act in excess of jurisdiction. Id. at 892.

In State ex rel. Hannah v. Seier, 654 S.W.2d 894 (Mo. banc 1983), handed down the same day as Morasch, the Supreme Court of Missouri refused to use prohibition to prevent a circuit court from dismissing an information in a criminal case, holding that as the circuit court had jurisdiction of the case its decision to dismiss the information must be allowed to stand whether right or wrong. Id. at 896.

In decisions subsequent to Morasch and Hannah regarding the use of prohibition to obtain interlocutory review by an appellate court of alleged circuit court error in a pending case the Supreme Court of Missouri appears to have retreated from those holdings. As we shall see, however, the extent of the departure is not easily discerned.

In State ex rel. Richardson v. Randall, 660 S.W.2d 699 (Mo. banc 1983), decided three months after Morasch and Hannah, the Supreme Court of Missouri employed prohibition to bar a circuit court from compelling an accused in a forgery case to disclose to the prosecution the name of a handwriting expert retained by the accused, which expert the accused did not intend to use at trial. The opinion in Richardson said:

"This Court has denounced promiscuous and expansive use and abuse of prohibition to allow review of trial court error, particularly in circumstances other than those concerning the question of trial court jurisdiction. [Citing Morasch and Hannah ] But from time to time in peculiarly limited situations there are instances in which absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court's order. In such circumstances, the extemporaneous character of prohibition may be the remedy to be applied." Id. at 701.

Richardson held that the circuit court's ruling would result in irreparable harm to the accused, and that she faced the plight of being without other relief, in that once the prosecution had the information regarding the anonymous expert the prosecution could consult with the expert to the detriment of the accused. As no adequate remedy existed by appeal, prohibition was necessary. Id. The author of the majority opinions in Morasch and Hannah concurred in Richardson.

In State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984), a party sought a writ of prohibition barring a circuit court from allowing such party to be impleaded as a third party defendant, arguing that the claim asserted by the third party petition was barred by the statute of limitations. The majority opinion in General Electric, without mentioning Morasch,

Page 115

addressed the limitation issue on the merits and concluded that the claim was not barred. One judge concurring in result in General Electric observed that Morasch had held prohibition did not lie to prevent a circuit court from proceeding to trial on a claim allegedly barred by limitations, and that the majority opinion in General Electric had retreated from Morasch by reaching the merits in a prohibition action seeking to prevent a circuit court from proceeding to trial on a claim allegedly barred by limitations. General Electric, 666 S.W.2d at 768. Another judge concurring in result in General...

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5 practice notes
  • 774 S.W.2d 864 (Mo.App. S.D. 1989), 16109, State ex rel. Schimmer v. Wall
    • United States
    • Missouri Court of Appeals of Missouri
    • July 12, 1989
    ...decide is whether they are sufficient to justify our review of respondent's action by prohibition. In State ex rel. Newton v. Conklin, 767 S.W.2d 112 (Mo.App.1989), we examined a number of decisions by the Supreme Court of Missouri dealing with the use of prohibition as a means of interlocu......
  • 884 S.W.2d 389 (Mo.App. W.D. 1994), WD 48727, Lammers v. Lammers
    • United States
    • Missouri Court of Appeals of Missouri
    • October 4, 1994
    ...for service by publication supersede the requirement of personal service in § 516.350 and Driscoll. See State ex rel. Newton v. Conklin, 767 S.W.2d 112, 118 (Mo.App.1989); State ex rel. Helms v. Moore, 694 S.W.2d 502, 504 (Mo.App.1985). Accordingly, Margaret effectively revived the judgment......
  • 841 S.W.2d 754 (Mo.App. E.D. 1992), 60603, State ex rel. K.R. by May v. Brashear
    • United States
    • Missouri Court of Appeals of Missouri
    • October 20, 1992
    ...obtaining, and admitting blood test results into evidence. Section 210.834, RSMo Cum.Supp.1990. See e.g. State ex rel. Newton v. Conklin, 767 S.W.2d 112, 117 (Mo.App.1989). In abbreviated terms, the statute proclaims: the court shall require the parties to submit to blood tests upon a party......
  • 868 S.W.2d 110 (Mo. 1993), 76092, Ostermueller v. Potter
    • United States
    • Missouri Supreme Court of Missouri
    • December 21, 1993
    ...Mo. Const. art. V, § 5; State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo. banc 1978); State ex rel. Newton v. Conklin, 767 S.W.2d 112 (Mo.App.1989). The Ostermuellers filed their first petition within the limitations period; therefore, the action was commenced within the time pr......
  • Request a trial to view additional results
5 cases
  • 774 S.W.2d 864 (Mo.App. S.D. 1989), 16109, State ex rel. Schimmer v. Wall
    • United States
    • Missouri Court of Appeals of Missouri
    • July 12, 1989
    ...decide is whether they are sufficient to justify our review of respondent's action by prohibition. In State ex rel. Newton v. Conklin, 767 S.W.2d 112 (Mo.App.1989), we examined a number of decisions by the Supreme Court of Missouri dealing with the use of prohibition as a means of interlocu......
  • 884 S.W.2d 389 (Mo.App. W.D. 1994), WD 48727, Lammers v. Lammers
    • United States
    • Missouri Court of Appeals of Missouri
    • October 4, 1994
    ...for service by publication supersede the requirement of personal service in § 516.350 and Driscoll. See State ex rel. Newton v. Conklin, 767 S.W.2d 112, 118 (Mo.App.1989); State ex rel. Helms v. Moore, 694 S.W.2d 502, 504 (Mo.App.1985). Accordingly, Margaret effectively revived the judgment......
  • 841 S.W.2d 754 (Mo.App. E.D. 1992), 60603, State ex rel. K.R. by May v. Brashear
    • United States
    • Missouri Court of Appeals of Missouri
    • October 20, 1992
    ...obtaining, and admitting blood test results into evidence. Section 210.834, RSMo Cum.Supp.1990. See e.g. State ex rel. Newton v. Conklin, 767 S.W.2d 112, 117 (Mo.App.1989). In abbreviated terms, the statute proclaims: the court shall require the parties to submit to blood tests upon a party......
  • 868 S.W.2d 110 (Mo. 1993), 76092, Ostermueller v. Potter
    • United States
    • Missouri Supreme Court of Missouri
    • December 21, 1993
    ...Mo. Const. art. V, § 5; State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo. banc 1978); State ex rel. Newton v. Conklin, 767 S.W.2d 112 (Mo.App.1989). The Ostermuellers filed their first petition within the limitations period; therefore, the action was commenced within the time pr......
  • Request a trial to view additional results