State ex rel. Gibson v. Judge of St. Louis Circuit Court

• Court: Missouri Court of Appeals
• Writing for the Court: GANTT
• Citation: State ex rel. Gibson v. Judge of St. Louis Circuit Court, 1 Mo.App. 543 (Mo. App. 1876)
• Decision Date: 30 March 1876
• Parties: THE STATE OF MISSOURI, ex rel. CHARLES GIBSON, Relator, v. JUDGE OF ST. LOUIS CIRCUIT COURT, Respondent.

1 Mo.App. 543

THE STATE OF MISSOURI, ex rel. CHARLES GIBSON, Relator,

v.JUDGE OF ST. LOUIS CIRCUIT COURT, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 30, 1876.

1. Mandamus is not the proper remedy for the correction of a judicial error.

2. An alternative writ of mandamus, to compel a trial court to enter final judgment in accordance with the mandate of an appellate court, will not be granted where the record does not disclose what the mandate of the appellate court was.

APPLICATION for mandamus.

Writ denied.

A. J. P. Garesché, for relator, cited: Bryan v. Smith, 16 Mo. 322; Leeches & Neenan v. Dugdale, 41 Mo. 318; Franz v. Dietrich, 49 Mo. 95; Hurck v. Erskine, 50 Mo. 119; Young v. Frost, 1 Md. 397; Biscoe v. Tucker, 14 Ark. 522; Minor v. Medbury, 7 Wis. 100.

GANTT, P. J., delivered the opinion of the court.

We are asked in this case to award against the judge of the St. Louis Circuit Court, presiding in room No. 1, an alternative writ, ordering him to show cause why he should not be directed to enter final judgment in favor of the relator, in a cause pending before him on exceptions to the final settlement of Charles Gibson, executor of Hamilton R. Gamble.

The record of the cause is not brought before us, but we are told in the petition for the writ that, after a trial in the Probate Court, judgment against the relator, and appeal to the Circuit Court, the cause was tried at great cost of time and money; that the Circuit Court decided against the relator; that he thereupon appealed to the Supreme Court, which reversed the judgment. The particulars of its action do not appear. The language employed by the relator is, “and thereupon the said Supreme Court reversed and remanded said cause to said Circuit Court.”

We are then told that, upon the cause being thus remanded, the relator moved the Circuit Court to enter final judgment in conformity with the mandate of the Supreme Court, but the Circuit Court overruled the motion, and relator excepted; and thereupon the Circuit Court again referred the case to a referee, to hear evidence and make a report upon which the Circuit Court may proceed to render final judgment.

The relator alleges that such reference will be productive of loss of time and waste of money, and that the duty of the Circuit Court is “to enter judgment in conformity with the mandate from said Supreme Court, and as moved by the relator.” Upon this showing, the relator asks for the writ indicated in the first lines of this statement.

We are very clear that the writ must be denied. Let it be imagined that it were issued, and that the judge of the St. Louis Circuit Court should return that he had complied with the mandate of the Supreme Court by making the order of which the relator complains; would we have any means of knowing whether that order was indeed a compliance with the mandate? We certainly would have no such means. All that we know, with the least approach (and it is only an approximation) to accuracy, is that the Supreme Court has reversed and remanded the cause for further proceedings in the Circuit Court. It would be a strange departure from the rule which enjoins the utmost precision of statement when an extraordinary writ is asked for, to grant such a remedy upon allegations like this. If it be said that, an alternative writ being granted, all the merits of the matter will appear by the return made to it, the answer is that such merits should appear in the first instance. Besides, suppose the judge should decline to show cause altogether, we would have nothing but conjecture to warrant the...