State ex rel. Evans & Howard Fire Brick Co. v. Lubke
| Decision Date | 31 October 1884 |
| Citation | 85 Mo. 338 |
| Parties | THE STATE ex rel. THE EVANS & HOWARD FIRE BRICK COMPANY, Appellant, v. LUBKE, Judge, et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
This case grew out of and is an incident to the next preceding one, and was argued and submitted in connection with it. The statement of facts contained in the opinion of the court in that case will serve for this, with the further statement, that at the time the defendants filed their motion in the St. Louis court of appeals to dismiss the appeal in that case, the relator herein, The Evans & Howard Fire Brick Company, filed in the same court an application for mandamus against George W. Lubke, judge of the circuit court of the city of St Louis, in which court the condemnation proceedings referred to in the preceding case were had, and the clerk thereof, asking an order to compel them to pay to relator the fifty thousand dollars awarded it by the commissioners, which sum was held by the clerk. The St. Louis court of appeals refused the mandamus and the relator appealed to this court.
Klein & Fisse and Smith & Krauthoff and Dyer, Lee & Ellis for appellant.
Noble & Orrick and John O'Day for respondents.
The circuit court properly granted an appeal and supersedeas in the case of the St. Louis & San Francisco Railway Company, for the reasons given in that case. But whether that appeal was properly granted or not, does not affect the disposition to be made of this mandamus proceeding. Such a proceeding is not allowable where the party has a remedy by appeal or writ of error. Blecker v. St. Louis Law Com., 30 Mo. 111.
The judgment of the court of appeals is, therefore, affirmed.
All concur.
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