Lewis v. Price

• Decision Date: 31 March 1848
• Citation: 11 Mo. 398
• Parties: LEWIS v. PRICE.
• Court: Missouri Supreme Court

11 Mo. 398

LEWIS

v.PRICE.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CARROLL, for Appellant.

TODD & KRUM, for Appellee.

1. An appeal or writ of error does not lie from an order awarding a mandamus. 3 Blacks. Com. 110, 111; Coke's Litt. 288; 1 Strange, 536, 625, 628; 8 Mod. 27, 29; 3 Com. Dig.; 3 Bro. P. C. 178, 505; 2 Bro. P. C. 555-6; 1 Salk. 263; 2 Salk. 503; 2 Ld. Raym. 1116; 2 Mod. 218; 2 Dunlap's Pr. 1130; 9 Mo. R. 196; 13 Wend. 130.

II. The appeal from the judgment of the law commissioner in the case of Lewis v. Price, was improperly allowed, and the refusal of the law commissioner to issue an execution on said judgment subjected that officer to the compulsory process of mandamus. Therefore, the Court of Common Pleas in awarding a peremptory mandamus decided correctly. Sess. acts, 1847, p. 91; 6 Mo. R. 166.

SCOTT, J.

This was a proceeding on mandamus in the Court of Common Pleas for the purpose of determining the question whether an appeal will lie on a judgment in an action of replevin in the Law Commissioner's Court of St. Louis. After an appeal had been allowed by the law commissioner, he refused to issue an execution on a judgment in replevin, in his court; an application was thereupon made to the Court of Common Pleas for a mandamus compelling him to issue the execution. On an agreed state of facts a peremptory writ was awarded. From this judgment an appeal was taken.

A question has been made whether an appeal or writ of error will lie on a judgment awarding a peremptory writ of mandamus.^(a) At the common law, an application for a mandamus was a summary mode of redress and never took the shape of a common law proceeding. Upon the coming in of the return to the alternative writ, the court summarily disposed of the matter on motion, without inquiring into the truth of the matters alleged in the return. Since the statute of Anne authorizing pleadings in proceedings on mandamus, to which our statute regulating the writ of Mandamus is similar, a judgment may be given for damages and costs upon which a writ of error will lie. The cases cited are those in which the proceedings were at common law, the statutory mode of proceeding being considered merely cumulative. 13 Wend. 130. The proceedings in this case must be considered as under the statute, as the truth of the facts were inquired into and agreed upon and submitted to the court as a special verdict.

The act supplementary to the act respecting the Law Commissioner's Court invests it with all the jurisdiction of justices of the peace. Session acts, 1847, p. 91. The section conferring this authority enacts that, in exercising it, the commissioner shall be subject to the same rules and regulations which apply to and regulate proceedings in justices' courts. The second section of the said act gives the commissioner concurrent jurisdiction with the Circuit Court in all actions of detinue and replevin, wherein the matter in controversy does not exceed one hundred and fifty dollars, and directs that he shall receive the same fees in all such cases as in other actions cognizable before him.

It is not denied but that by the first section of the act above cited an appeal is allowed in all cases in which there is concurrent jurisdiction with the justices of the peace. A section immediately following gives concurrent jurisdiction to the commissioner with the Circuit Court in certain actions, the trial of which has not been intrusted to justices of the peace, and allows the commissioner the...