State ex rel. Elrick v. Allen
| Decision Date | 03 December 1912 |
| Citation | 151 S.W. 756,168 Mo.App. 463 |
| Parties | STATE ex rel. C. F. ELRICK et al., Relators, v. CHARLES CLAFLIN ALLEN, Judge, Respondent |
| Court | Missouri Court of Appeals |
November 16, 1912, Argued and Submitted
Original Proceeding by Mandamus.WRIT MADE PEREMPTORY.
Earl M Pirkey for relator.
H. A Loevy for respondent.
--On application of relators an alternative writ of mandamus was issued against the Honorable Charles Claflin Allen, one of the judges of the circuit court of the city of St. Louis, requiring him to sign a certain bill of exceptions in a cause in which one C. E. Armstrong was plaintiff and the relator Elrick and one Rankin were defendants, or to show cause on a day named why he should not do so. Accompanying the petition for the writ of mandamus is a copy of the proposed bill of exceptions which had been tendered to the honorable judge of the circuit court within due time and which he had been requested to sign but which, as was averred, he had declined to sign. In due course respondent filed his return to the alternative writ, admitting that he had refused to sign the bill of exceptions which had been tendered. Something like eleven reasons are given for this refusal. The first reason is that he, as judge, had refused to sign the bill of exceptions because it was untrue. Summarizing the reasons which follow this general denial of the truthfulness of the return it appears that the honorable circuit judge refused to sign this bill of exceptions because, first, it omitted to set out matters that had occurred at the time of the trial of the cause in the circuit court, more accurately, at the time when default was taken against the defendants, and because it included matters of which the learned trial judge claimed that the court took judicial notice.
The action which is at the foundation of this controversy was instituted by Armstrong against Elrick and Rankin before a justice of the peace of the city of St. Louis. It appears that on the trial before the justice there was a judgment against the defendants there, from which judgment the defendant Elrick appealed to the circuit court, giving the usual appeal bond, with Kidwell, the other relator here, as surety. This cause, on appeal, was docketed for trial in the circuit court in due course and being called for trial and the appellant Elrick not appearing, as is recited in the judgment, judgment went against him and his surety, it being set out in the judgment that appellant Elrick, although duly called, failed to appear to prosecute his appeal, and that thereupon on motion of plaintiff the judgment of the justice was affirmed. It was thereupon adjudged that the plaintiff recover of the defendant Elrick and of Kidwell, the surety on his appeal bond, the amount sued for, with interest and costs and that execution issue therefor. In due time the relators here appeared in the circuit court and filed a motion to set aside the judgment and for a trial thereon, accompanying the motion with affidavits. The motion was resisted, Armstrong, the plaintiff in the cause, filing counter affidavits. All of these are set out in the bill of exceptions which was tendered. After consideration of the motion to set aside the judgment and for trial, it was overruled by the trial court. Whereupon Elrick and his surety against...
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