Franciscus v. Martin
| Decision Date | 31 January 1845 |
| Citation | 9 Mo. 197 |
| Parties | FRANCISCUS v. MARTIN. |
| Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
This was a proceeding, on a motion and rule, made on the appellee, Martin, to show cause why a judgment obtained by him in the St. Louis Court of Common Pleas, and the proceedings thereon, should not be set aside, for reasons filed. The order of the court disposing of this proceeding, is in these words: “And forasmuch as the court cannot take cognizance of the rule herein, it is ordered that the said rule be discharged, and the motion therefor be dismissed out of court.” We are rather inclined to the opinion, that this is a proper case for a mandamus, but as the appellee is not disposed to press this objection, and is anxious to expedite the cause, the judgment will be reversed. It may be remarked that the authority and duty of a court to entertain motions of the character of that involved in this cause, are unquestionable. Courts should not refuse to hear such motions, because they may be of opinion they ought not to be granted. They should hear them on the merits, and enter a judgment in order on them, that the party may have a writ of error, or appeal, and not be compelled to resort to the tedious and slow process of a mandamus, which is necessary, in cases where a court refuses to act. Astor v. Chambers, 1 Mo. R. 191; Miller & Irvine v. Richardson, 1 Mo. R. 310. Until a point is decided by the court below, this court has no authority to determine it. It was not decided by the Court of Common Pleas, whether if the facts stated were true, it was proper to set aside the judgment and proceedings thereon. As this is a new question and of some importance, and it has not been argued, and as the authorities on the subject are not at hand, we will not undertake now to determine it. Judgment reversed.
To continue reading
Request your trial
-
State ex rel. Gary Realty Co. v. Hall
...the judgment, was appealable. (a) It was the duty of the court to have heard the motion instead of striking same from the files. Franciscus v. Martin, 9 Mo. 197; Dower v. Conrad, 207 Mo.App. 176; Cross Gould, 131 Mo.App. 585. (b) Striking the motion from the files was in effect overruling t......
-
State ex rel. Gary Realty Co. v. Hall
...the judgment, was appealable. (a) It was the duty of the court to have heard the motion instead of striking same from the files. Franciscus v. Martin, 9 Mo. 197; Dower v. Conrad, 207 Mo. App. 176; Cross v. Gould, 131 Mo. App. 585. (b) Striking the motion from the files was in effect overrul......
-
Chevallier v. Buford
...verdict and judgment is valid), the judgment would have been arrested below and the delay and costs consequent upon this appeal avoided. 9 Mo. 197. The case of Rice v. Powell referred to by appellant's counsel, in support of his second objection, does not sustain the same, but expressly dec......
- Shrever v. Livingston Cnty.