Bennett v. McCaffery

• Decision Date: 06 December 1887
• Parties: IN RE PETITION OF A. BENNETT, Appellant, v. JAMES MCCAFFERY, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 220

IN RE PETITION OF A. BENNETT, Appellant, v. JAMES MCCAFFERY, Respondent.

Court of Appeals of Missouri, St. Louis.

December 6, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

M KINEALY and JAMES R. KINEALY, for the appellant: It was the duty of the justice to certify the cause to the circuit court upon the filing of the affidavit. Rev. Stat., sect. 2931; Meier v. Thieman, 90 Mo. 433.

JOHN O'GRADY, for the respondent.

OPINION

THOMPSON J.

This is a proceeding against a justice of the peace to compel him to certify a cause, and transmit the papers and process therein to the clerk of the circuit court, because of the fact that the defendant therein has filed an affidavit showing that title to real estate is in issue therein, as provided in Revised Statutes, section 2931. The return of the justice sets out, in the form of exhibits, the complaint, the summons, and the sworn plea of the defendant therein, setting up that title to real estate was in issue. These exhibits show that the proceeding before the justice was a landlord's summons, and that the defendant therein (the plaintiff in this proceeding) filed an affidavit, in which he denied that the plaintiff therein held the title to any of the real estate and premises described in the complaint, or was the defendant's landlord, or was entitled to collect rent therefor from him, but asserted that the title to the premises was in one Mrs. Ward, who was the defendant's landlord, and reciting that the defendant put in issue the title to the premises, and requested that the papers in the cause be transmitted to the circuit court. It is difficult to see how an affidavit could be drawn which would more distinctly put in issue the title to the premises in controversy, within the meaning of the statute, unless it should set out the evidence affecting the title, which, of course, is not required. When this affidavit was filed the jurisdiction of the justice to proceed further in the cause was absolutely determined. Meier v. Thieman, 90 Mo 433, 441. The justice had nothing further to do but to transmit the papers to the clerk of the circuit court, as required by the statute. The duty was a ministerial one, enjoined by law, and there is no doubt that mandamus is a proper remedy to compel its performance. Harper v. Baker, 9 Mo. 116; The State ex rel v. Ryan, 2 Mo.App. 303.

It is true that the...