State ex rel. Henry v. Cracraft et al., 26173.

• Decision Date: 02 March 1943
• Docket Number: No. 26173.,26173.
• Citation: 168 S.W.2d 953
• Parties: STATE OF MISSOURI, AT THE RELATION OF J.K. HENRY AND ESTHER HENRY, RESPONDENTS, v. HARRY CRACRAFT, FRED CLIPPARD AND WILLIE F. MEIER, JUDGES OF THE COUNTY COURT OF CAPE GIRARDEAU COUNTY, APPELLANTS.
• Court: Missouri Court of Appeals

168 S.W.2d 953

STATE OF MISSOURI, AT THE RELATION OF J.K. HENRY AND ESTHER HENRY, RESPONDENTS, v. HARRY CRACRAFT, FRED CLIPPARD AND WILLIE F. MEIER, JUDGES OF THE COUNTY COURT OF CAPE GIRARDEAU COUNTY, APPELLANTS.

No. 26173.

St. Louis Court of Appeals, Missouri.

Opinion filed March 2, 1943.

Appeal from the Circuit Court of Cape Girardeau County. — Hon. James C. McDowell, Judge.

REVERSED AND REMANDED (with directions).

R.P. Smith for appellants.

(1) Prohibition is a remedy to prevent judicial action only. The matter of opening or vacating a public road is not a judicial act, and for that reason prohibition cannot properly issue to prevent it. Aldridge v. Spears, 41 Mo. App. 527, 530; affirmed 101 Mo. 400, 406. (2) Prohibition is an extraordinary remedy to be applied only in extraordinary cases. State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Bromschweig v. Hartman, 221 Mo. App. 215, 300 S.W. 1054. (3) Prohibition cannot be invoked to perform the functions of an appeal or writ of error, and should be denied when an adequate remedy by appeal or error is available. State ex rel. Burns v. Shain, 248 S.W. 591; State ex rel. Mueller v. Wurdeman, 232 S.W. 1002; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191. (4) Where the tribunal sought to be prohibited is acting within its jurisdiction, prohibition must be denied, regardless of how erroneously such tribunal is acting or threatening to act. Jurisdiction is the power to act either correctly or incorrectly and prohibition cannot be used to interfere with that power where it exists. State ex rel. McNamee v. Stobie, supra; State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347; State ex rel. American Pigment Co. v. Shields, 237 Mo. 329, 141 S.W. 585. (5) Appellants as judges of the county court of Cape Girardeau county are vested with exclusive original jurisdiction to hear and determine petitions for the vacating of public roads. R.S. Mo. 1939, sec. 8482; Aldridge v. Spears, supra. (6) There can be no res adjudicata where the parties are not the same, or where they appear in different capacities. Sherman v. Life Ins. Co., 291 Mo. 139, 236 S.W. 634; State ex rel. Subway Co. v. St. Louis, 145 Mo. 551, 46 S.W. 981; State ex rel. Stoecker v. Jennings Sewer Dist., 333 Mo. 900, 63 S.W. (2d) 133; In re Thirty-seventh Street, 195 S.W. 554; Weaver & Hall v. Bryan, 225 Mo. App. 385, 35 S.W. (2d) 639. (7) A quasi-legislative action, such as the opening or vacating of a public road, cannot be made the basis of a plea of res adjudicata. Aldridge v. Spears, supra.

J. Grant Frye and Gerald B. Rowan for respondents.

(1) The writ of prohibition was sought by respondents in this case to prohibit action by appellants on a petition to vacate a public road. Appellants were exercising judicial functions in passing on such application. Hence, prohibition would not be denied on the theory of appellants were not exercising a judicial function. Aldridge v. Spears, 101 Mo. 400, 14 S.W. 118; Sec. 8483, R.S. Mo. 1939. (2) Prohibition is the proper remedy to prevent judicial action by an inferior tribunal when a superior tribunal has therefore taken jurisdiction of the subject-matter and the parties in the case in which the inferior tribunal is threatening to act; and in this case where the county court (appellants) are threatening to take judicial action in this matter which had previously been appealed to and passed upon by the circuit court. Prohibition is the proper remedy to prevent such action. State ex rel. Ingenbohs v. Landis (Mo. App.), 158 S.W. 883; State ex rel. Aetna Life Ins. Co. v. Knehans (Mo. App.), 31 S.W. (2d) 226; State ex rel. v. Hall (Mo.), 17 S.W. (2d) 935. (3) There ought to be an end to litigation sometime and prohibition will lie to put an end to the litigation in this case since it appears that a question which was duly litigated and finally disposed of by circuit court is sought to be re-litigated in the county court. The assumption is that the matter will be disposed of this time by the respective courts exactly as it was before and relators ought not to be required again to try the case in the county court, appeal it, and try it once again in the circuit court, to accomplish a result which would be identical with the result already accomplished. Authorities under (2), supra; State ex rel. v. Williams (Mo.) 120 S.W. 740, 752. (4) The parties to the petition (action upon which is sought to be prohibited by this action) are bound by the former adjudication of the same issues because, although there was not a complete duplication of parties, the original parties were in law acting in representative capacity for all the free-holders of the township. A contrary rule would permit relators to be continually harassed by suits like this no matter how many times the issues were determined. Sec. 8482, R.S. Mo. 1939. (5) Even though prohibition might not be the proper remedy in this case, the matter is before the court and the issues can be finally disposed of in this proceeding; and in such a case this court should proceed to determine the matter. State ex rel. v. Higbee (Mo.), 43 S.W. (2d) 825.

SUTTON, C.

This is an action in prohibition instituted in the Circuit Court of Cape Girardeau County to restrain the judges of the county court of said county from entertaining jurisdiction or taking further action in a proceeding pending in said county court for the vacation of a public road in said county. A preliminary order issued. Defendants demurred to the petition. The court overruled the demurrer. Defendants announcing that they would not plead further, the court entered final judgment making the preliminary order absolute and prohibiting the defendants from taking any further action in said proceeding for the vacation of said public road. Defendants appeal.

The petition alleges that, in July, 1940, there was filed in the county court of Cape Girardeau county and duly and timely served on relators a notice of intended application for the vacation of a public road in Applecreek township in said county, signed by Isabel Schmidt and sixteen others; that relators are residents of Applecreek township, and that the road proposed to be vacated runs through and touches upon land owned by them; that relators appeared in the county court and remonstrated against the vacation of said road, and that on February 10, 1941, said county court entered its judgment vacating said public road; that from such judgment of the county court relators duly appealed to the circuit court of Cape Girardeau county; that upon a trial anew in the circuit court it was, on June 24, 1941, adjudged that the judgment of the county court be set aside and for naught held, and that relators be restored to their rights existing before said order was entered by the county court, and that said road remain open as a public road; that afterwards, in September, 1941, another proceeding was commenced by the same parties and twenty-six others in said county court for the vacation of the same public road; that on November 3, 1941, the said judges of the county court, unless sooner restrained, intend to take jurisdiction of the petition filed in said court and intend to pass upon and will pass upon the merits of whether or not said road should be vacated; that such a hearing and decision will be in excess of the jurisdiction of the county court because of the fact that the question of whether or not said road should be vacated is res adjudicata in that since the rendition of the judgment by the circuit court, on June 24, 1941, there has been no change in the conditions surrounding said road and no change in relators' condition or the condition of the petitioners with reference to the necessity of said road or with reference to it being an unreasonable burden upon the district, and that the said judgment of the circuit court is conclusive upon the judges of the county court and the defendants herein, and is conclusive upon the petitioners and all other freeholders of Applecreek township.

Defendants insist here that the circuit court erred in overruling their demurrer to relators' petition because under the facts stated in the petition prohibition does not lie. Relators contend that the second proceeding in the county court is barred, under the doctrine of res adjudicata, by the judgment in the first proceeding denying the vacation of the public road.

The purpose of the writ of prohibition is to prevent an inferior court from assuming jurisdiction with which it is not legally vested, in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie as a rule for grievances which may be redressed in the ordinary course of judicial proceedings by other remedies provided by law. It is to be used with great caution and forbearance for the furtherance of justice and to secure order and regularity in judicial proceedings and should be used only in cases of extreme necessity. Nor will it ordinarily issue in a doubtful case. In a proper case, however, the use of it should be upheld and encouraged, as it is important to the due and regular administration of justice that each court should confine itself to the exercise of those powers with which under the Constitution and laws of the State it has been intrusted. The writ is...