Ostmann v. Frey
| Decision Date | 03 May 1910 |
| Parties | HENRY OSTMANN, Appellant, v. MAX J. FREY et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Charles Circuit Court.--Hon. Jas. D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
Wm. H Clopton for appellant.
(1) After the affidavit for an appeal was made and the appeal bond approved by Justice Frey, his jurisdiction over the case ceased. Ostmann had done all the law required him to do. If the learned prosecuting attorney of St. Charles county desired an affirmance of the judgment he could have presented a copy of the record below and asked for an affirmance. The statutes of the State provide no means whereby Ostmann could have obtained relief. Certiorari would not help him. Moore v. Ruby, 8 Mo.App. 156; Breen v Welz, 4 Mo. 250; State ex rel. v. Raum, 3 Mo.App. 580. (2) The State has provided by positive law against the wrong complained of. By section 4448, R. S. 1899 it is provided that the remedy afforded by the writ of prohibition shall be granted to prevent the usurpation of judicial power, and in all cases where the same is now applicable according to the principles of law. The appeal ousted Justice Frey of jurisdiction over the case. Where an appeal bond is deposited with a justice of the peace in time the fact that the justice fails to perform his duty is not the fault of the applicant and will not invalidate his appeal. Distilling Co. v. Kermis, 79 Mo.App. 111; Rowe v. Schultz, 74 Mo.App. 602. (3) The delivery of his affidavit and bond to Justice Frey was a filing of those papers for all the purposes of the law. Anderson's Dictionary of Law, 459; Callin v. Kamman, 55 Mo.App. 465, and cases cited.
Theodore C. Bruere for respondents.
(1) The record discloses that appellant never filed an appeal bond in conformity to section 2438, R. S. of Mo. 1899. And therefore no appeal was taken. (2) The giving of the peace bond by appellant under the provisions of section 2430, R. S. of Mo. 1899, estops him from maintaining this action. (3) The fee bill by lapse of time is dead, the return day having long expired, and any restraining or prohibitory order made would be without beneficial results. (4) The plaintiff had an adequate remedy at law if the justice refused to grant an appeal. His remedy was by rule and attachment from the circuit court. Railroad v. Franks, 55 Mo. 325; sec. 4065, R. S. 1899. (5) Prohibition will not lie against a ministerial officer or constable. (6) Prohibition will not lie to restrain a ministerial act such as issuing an execution. State ex rel. v. Clark Co., 41 Mo. 50; Casby v. Thompson, 42 Mo. 133; Hockaday v. Newsom, 48 Mo. 196. (7) If the judgment of the justice is void as contended for by appellant, then appellant is not entitled to resort to equity to enjoin the execution of a void judgment. Strauss v. Simpson, 74 Mo.App. 230; Railroad v. Lowder, 138 Mo. 533. (8) Appellant never has perfected an appeal from the judgment of the justice and is not entitled to equitable relief.
This is an application for a prohibition which originated in the circuit court. Upon filing the petition, summons was duly issued and served on defendants who appeared in due time and filed their answer. The issues having been thus made up, after hearing the evidence on behalf of both parties, the court denied the writ, dismissed the petition and entered judgment accordingly. From this judgment the plaintiff prosecutes the appeal. The rule formerly obtained in this State as at common law, to the effect that though an appeal was a proper remedy on behalf of the respondent when the circuit court had awarded a prohibition, none was allowable at the suit of the relator when the writ was denied. In cases where the mover had applied to the circuit court for a writ of prohibition and his application in that behalf had been denied, it was ruled that no appeal would lie on the part of the relator for the reason such refusal was not a final judgment operating to estop him from applying to a superior court for an original writ as though no application had been theretofore made. The reasoning in support of that doctrine is that the writ of prohibition is unlike the writ of habeas corpus and not to go as a matter of right but instead is discretionary with the court to whom the application is made. It was held at an early date by the court of King's Bench that a writ of error would not lie upon the refusal of a prohibition, it not being regarded as a final judgment between the parties.
The doctrine of this case has been extended in many of the American courts with respect to the statutory remedy of appeal. Among the jurisdictions which adhered thereto was that of Missouri, and it has heretofore been decided on the grounds stated by both this court and the Kansas City Court of Appeals that, notwithstanding our general statute allowing appeals to the party aggrieved, no appeal would lie from an order of the circuit court refusing to award a prohibition. See State ex rel. Griffith v. Bowerman, 40 Mo.App. 576; State ex rel. Smith v. Levens, 32 Mo.App. 520; see also High, Extraordinary Remedies, sec. 794; 16 Ency. Pl. and Pr. 1143, 1144. But this doctrine no longer obtains with us as appears from a recent statute on the subject.
In 1895, the Legislature contributed an article consisting of nine sections of statutory law touching the matter of prohibition. The sections 4448, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456, R. S. 1899. 4448, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456, Ann. St. 1906. Section 4450 provides that proceedings for prohibition shall be by civil action in which the moving party is plaintiff and the adverse party defendant and shall otherwise conform as nearly as practicable to the code of civil practice, except as otherwise provided in the article. This statute dispenses with the idea that the state is a necessary party to such proceedings. [State ex rel. v. Hirzel, 137 Mo. 435, 37 S.W. 921, adhered, 38 S.W. 961.]
Section 4451, after authorizing applications for this writ to be made by petition to the proper court, says that the petition may be heard in the first instance summarily or on notice to the adverse party, as the court may order.
Section 4452 provides the defendant may demur to the petition or make return to the preliminary order. When the return is made, the plaintiff may plead thereto.
Section 4453, in so far as applicable to proceedings in the circuit court, says the cause shall be heard as soon as practicable after the issues are joined and shall be triable in the same manner as other civil cases.
Section 4454 relates to the judgment the court is authorized to give in such proceedings. Among other things, it provides upon a hearing the court may render final judgment on the merits and for the costs as the facts may warrant and that such judgment is enforceable in like manner as other judgments in civil actions.
Section 4455 relates to motions for a new trial and in arrest of judgment and authorizes an appeal from the judgment contemplated in section 4454. Section 4455 is as follows:
"Any final judgment in prohibition shall be reviewable by motions for new trial and in arrest, and by appeal, as in other civil actions; but in the case of an appeal from the judgment of any circuit or common pleas court imposing a prohibition, the appeal shall not operate to discontinue or in anywise affect the force of the judgment as a stay of the proceedings in question, until such appeal be determined."
It appears the present proceeding was instituted under these statutes. Plaintiff filed his petition for a prohibition in the circuit court in term time and the court, upon inspecting the same, entered its order of record directing a summons to be issued and served in due form upon the defendants. This summons was returnable to a subsequent term of the court, to which plaintiff's application for a prohibition was continued. No preliminary order in prohibition was issued. The summons having been duly served, defendants appeared and answered the petition by a general denial. By this pleading, an issue was made as to the truth of the facts relied upon in the petition for the prohibition. On the issue of fact thus made, as to whether or not a prohibition should be awarded, the court heard the witnesses pro and con at great length. Indeed, the issue was framed and tried as in an ordinary suit at law and exceptions were duly saved throughout. After hearing all the evidence for both parties, the court denied the writ and dismissed the plaintiff's petition as though the facts were found for defendants. Motions for new trial and in arrest of judgment were duly saved and are preserved in the bill of exceptions together with an exception to the action of the court in overruling the same. A judgment, denying the writ, dismissing the bill, taxing the costs against the plaintiff and ordering execution therefor was duly entered and appears in the transcript here.
In this state of the record there can be no doubt that an appeal may be prosecuted under the statute above quoted, section 4455 from the judgment even though no preliminary rule in prohibition was ever awarded. Whatever may have been the rule as to this matter, prior to the statutes above referred to, those statutes certainly contemplated a final judgment between the parties in a proceeding of this character and authorize an appeal therefrom. Indeed, where the issue is made up and tried in the circuit court, as was done in this case, section 4454, in express terms, authorizes the court to "render final judgment on the merits and for the costs as the facts may warrant . . . and such judgments may further be enforced in like...
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