Morris v. Lenox
| Decision Date | 31 July 1843 |
| Citation | 8 Mo. 252 |
| Parties | MORRIS v. LENOX AND MARTIN. |
| Court | Missouri Supreme Court |
W. V. N. BAY, for Plaintiff. 1. The subject-matter was within the jurisdiction of the justice. Rev. Code, 348. 2. A writ of prohibition will not be allowed where the subject-matter is within the jurisdiction of the subordinate tribunal; if error intervenes, the remedy is by appeal. Vide The People, on the relation of David Keen v. S. S. Seward, 7 Wend. R. 518; 3 Blacks. Com. 113, 114, n. 29. 3. The defendant might have availed himself of his defense upon the trial in the court below, but having failed to do so, is without remedy. 4. The Circuit Court erred in granting the prohibition, and should have set the same aside on motion of the plaintiff. 5. Prohibition will not lie where the inferior court has only jurisdiction over part of the matter and not of the rest. 2 Hanson's Dig. 1273; 2 Term R. 473.
FRISSELL, for Defendants. It is conceded, that if the justice had jurisdiction, the writ of prohibition was improvidently issued. It is clear that Morris could not sue Lenox in either debt or assumpsit, for the want of an express or implied assumpsit. The action must be in tort. The statute, acts of 1835, p. 438, § 5, expressly denies to justices jurisdiction in the actions of detinue and replevin. The same statute, § 3, gives to justices jurisdiction in actions of trespass, and trespass on the case, wherein damages claimed do not exceed fifty dollars. A writ of prohibition in this case is the appropriate remedy; for it lies from a superior to an inferior court, where the inferior tribunal exceeds its jurisdiction. 2 Chitty's Gen. Pr. 355, 360.
Evan Morris commenced a suit before a justice of the peace of Crawford county against William Lenox and Samuel Martin, and filed the account following against them:
“For one horse colt, valued at $50 00 Damages in loss of said colt
35 00--$85 00.”
Judgment was given for Morris, and Lenox and Martin took an appeal to the Circuit Court.
An act of 12th February, 1839, required any person, aggrieved by any judgment rendered by any justice of the peace, before taking an appeal, to make an affidavit before the justice, that he does not take such appeal for the purpose of vexation and delay; but because he considers himself aggrieved by the judgment of the justice. This appeal was taken on the 4th January, 1840. The affidavit was not made according to law, and when the cause came into the Circuit Court it...
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State ex rel. Kansas City Public Service Co. v. Waltner
...Moehlenkamp (Div. II, 1896), 133 Mo. 134, 139, 34 S.W. 468, 469. Expressions to like effect may be found in many cases, early (Morris v. Lenox (1843), 8 Mo. 252) well as late (see West's Digest (Mo. Ed.), Prohibition, Key No. 3). Relators present an extensive review of proceedings in prohib......
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...623; State v. Ellison, 276 Mo. 642; State v. McQuillin, 262 Mo. 256; Davidson v. Hough, 165 Mo. 561; State v. Fox, 85 Mo. 61; Morris v. Lenox, 8 Mo. 252; Sec. 928, R. S. (6) The admitted facts show the records mentioned in respondent's order have been adjudged to be and in fact are relevant......
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State ex rel. Sullivan v. Reynolds
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State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 37566.
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