State ex rel. Laclede Bank v. Lewis

• Decision Date: 31 October 1882
• Citation: 76 Mo. 370
• Parties: THE STATE ex rel. THE LACLEDE BANK v. LEWIS.
• Court: Missouri Supreme Court

76 Mo. 370

THE STATE ex rel. THE LACLEDE BANK

v.LEWIS.

Supreme Court of Missouri.

October Term, 1882.

Prohibition.

PEREMPTORY WRIT AWARDED.

Application for a writ of prohibition at the relation of the Laclede Bank to restrain Hons. Edward A. Lewis, Robert A. Bakewell and Seymour D. Thompson, judges of the St. Louis court of appeals, Joseph F. Barer, clerk of said court, and the St. Louis court of appeals, from issuing or causing to be issued any peremptory writ of mandamus.

Noble & Orrick for relator.

The petition for a prohibition may be made by a party or a stranger to the record. Green & Meyer Mo. Prac., p. 456, § 1194; High on Extr. Rem., § 779; Trainer v. Porter, 45 Mo. 340; State v. Clark Co., 41 Mo. 49; Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 296; Washburn v. Phillips, 2 Metc. 296; Ex parte Smith, 23 Ala. 94. The Laclede Bank is the real party in interest. Relator is remediless except through a writ of prohibition. Where an inferior court has no jurisdiction, or exceeds its jurisdiction, prohibition lies. Thomas v. Mead, 36 Mo. 245; State v. Clark Co., 41 Mo. 44; Vitt v. Owens, 42 Mo. 512; High Extr. Rem., § 789. An appeal lies to the Supreme Court from the judgment of the court of appeals on the demurrer to the return to the alternative writ of mandamus, and such appeal, with bond as required by statute, operates a stay of all further proceedings. Ex parte Skaggs, 19 Mo. 339; Lewis v. Price, 11 Mo. 398; State ex rel. v. Sutterfield, 54 Mo. 395; In re Bowman, on first application for re-instatement as attorney--decision of this court not reported. Also in the matter of Mo. State Lottery; City of Memphis v. Brown, 94 U. S. 715; Levy v. Goldberg, 40 Wis. 311; State ex rel. v. Judges, 7 Iowa 203. After the appeal to this court was perfected, the court of appeals lost all control and jurisdiction of the mandamus proceeding, and the case must be regarded as one pending in this court to which the appeal was taken. Foster v. Rucker, 26 Mo. 494. Relator has no adequate remedy against the action of the court of appeals in ordering the issuance of the peremptory writ of mandamus, notwithstanding the appeal, except through a writ of prohibition. The appeal from the judgment of the circuit court in the case of Albers v. The Laclede Bank, will not be an adequate remedy. Lockwood v. Ins. Co., 47 Mo. 50; Rennick v. Walton, 7 Mo. 292; Glasgow v. Moore, 9 Mo. 834.

Marshall & Barclay for respondents.

1. The act sought to be prohibited, viz: the issue of process to enforce an order already entered, is a ministerial act, and prohibition will not lie to restrain its performance. Prohibition only lies to forbid judicial acts. State v. Clark Co., 41 Mo. 44; Hockaday v. Newsom, 48 Mo. 196; Vitt v. Owens, 42 Mo. 512; Casby v. Thompson, 42 Mo. 133; Thompson v. Tracy, 60 N. Y. 31. Even where courts act in a ministerial capacity, such acts cannot be the subject of prohibition. Hockaday v. Newsom, 48 Mo. 196; State v.Clark Co. Ct., 41 Mo. 44. The issue of execution (or any other writ or process to enforce a judgment of court) is a mere ministerial act. It may hence be (in a proper state of facts) the subject of mandamus, but never of prohibition. To award a writ is a judicial act; to issue it is ministerial. Freem. on Ex., (1876) § 23; Kyle v. Evans, 3 Ala. 481; Wilburn v. Hall, 17 Mo. 471; Regina v. Clerk, 12 Eng. Law & Eq. 428; Moore v. Muse, 47 Texas 210; People v. Loucks, 28 Cal. 68; Laird v. Abrahams, 15 N. J. L. 22; People v. Gale, 22 Barb. 502; Ex parte Braudlacht, 2 Hill. 367; State v. Clark Co., 41 Mo. 44; People v. Clerk Marine Ct., 3 Abb. App. Dec. 492.

2. The statute of Anne from which our statute concerning mandamus is copied, requires the issuance of a peremptory writ of mandamus “without delay.” The English courts early settled the meaning of this phrase by deciding that a supersedeas would not lie upon a judgment for a peremptory writ of mandamus. Dean v. Dowgatt, 1 P. Wms. 351. The same construction was given to this section of the statute of Anne, at an early date in New York, and has never been changed. People ex rel. Griffen v. Steele, 1 Edmonds' Select Cases 574. The great value of this case as authority may be estimated from the fact that it was reported by no less than four several reporters of that state, namely: 2 Barb. 554; 1 Code Reports 88; 6 N. Y. Legal Observer 212, and 1 Edmonds' Select Cases 574; and has never been even questioned in that state since it was rendered. The same rule has been laid down elsewhere. Pinckney v. Henegan, 2 Strobh. (S. C. L.) 250; People v. Willis, 5 Abb. Pr. 205. And is announced by the only text writer on the subject. High on Extr. Rem., § 557. Mandamus is a remedy which would be utterly defeated if an appeal would operate a supersedeas. It lies to control the doing of a multitude of acts, the omission of which during the pendency of an appeal would render the writ, when finally obtained, worthless. Accordingly, this court has decided in several instances that mandamus is a special and extraordinary proceeding, and not governed by the general provisions of the practice act. State v. Burkhardt, 59 Mo. 75; Smith v. St. Francois Co. Ct., 19 Mo. 433; Chinn v. Trustees, 32 Ohio St. 236; State v. Trustees, 61 Mo. 155, and State v. Holladay, 65 Mo. 76, (overruling Railroad Co. v. County Ct., 53 Mo. 156,) where a contrary rule was intimated. The practice by its very terms does not apply to mandamus proceedings. R. S., §§ 3510, 3585.

3. Appeal was not a part of common law procedure; it is purely statutory and cannot be extended beyond the express terms of the statute allowing it. State v. Clinton, 67 Mo. 380; Railroad Co. v. Commonwealth, 39 Pa. St. 403; The Roanoke, 3 Blatchf. 390; Howe v. State, 9 Mo. 682; Robinson v. Walker, 45 Mo. 117; Ferguson v. Ferguson, 36 Mo. 197; Lengle v. Smith, 48 Mo. 276. The statute concerning appeals refers only to staying “execution,” and the terms of the bond show that only pecuniary judgments are meant, for the bond is to be conditioned “in double the amount of whatever debt, damages and costs, etc., have been recovered by such judgment.” R. S., § 3713. The allowance of an appeal, (where bond has been given, as in the case at bar,) of itself operates a stay of execution, but not a stay of the peremptory writ of mandamus, which is no execution, but an extraordinary writ of a very different character. R. S., § 2336; Chinn v. Trustees, 32 Ohio St. 236; Mansfield v. Fuller, 50 Mo. 338. This argument is strongly sustained by the express provisions of our statutes for the stay of execution in several special proceedings, which provisions would be unnecessary if the general law of appeals were capable of the construction which the relator here insists upon. Ut res magis valeat, quam pereat. Replevin, R. S., § 3866: Mortgages, R. S., § 3307; Ejectment, R. S., §§ 2256, 2258; Dower, § 2233. Hence, by the very terms of the general statutes, an appeal with bond cannot be held to stay anything but the execution proper, and this view has been sustained in many analagous cases involving the same principle. Whitney v. Mowry, 3 Fish. Pat. Cas. 175; Merced Min. Co. v. Fremont, 7 Cal. 130; State ex rel. v. Chase, 41 Ind. 356; Hart v. Mayor of Albany, 3 Paige 381.

RAY. J.

This is a petition at the relation of the Laclede Bank, for a prohibition against the St. Louis court of appeals to prohibit said court from issuing its peremptory mandamus against W. H. Horner, judge of the St. Louis circuit court, compelling him, as such judge, to enter judgment upon a verdict rendered in a certain cause pending before him, wherein C. H. Albers and others are plaintiffs, and the banking house of Bartholow, Lewis & Co.--now the Laclede Bank--and the relator in this petition, is defendant, notwithstanding the fact that said judge, on the motion of the defendant, had, in effect, by its conditional order, set aside said verdict, and granted a new trial in said cause.

The “ mandamus proceeding” out of which this application has grown, is entitled “ State of Missouri ex rel. C. H. Albers et al. v. W. H. Horner, Judge, respondent,” and is reported in 10 Mo. App. 307, 315. It appears from that case, as well as from the petition and the accompanying transcript, that a prior verdict in said cause had been set aside, and a former new trial granted on the motion of the same defendant, and that said mandamus was awarded by said court of appeals on the relation of said Albers and others, upon the ground that said second new trial was an act beyond the power of said circuit court, and in violation of the provisions of section 3705 of the Revision of 1879, which declares that, “Only one new trial shall be allowed to either party, except, 1st, When the triers of the fact shall have erred in a matter of law; 2nd, When the jury shall be guilty of misbehavior.”

The ground of this application is, that said court of appeals, in violation of the provisions of section 3713 of the Revision of 1879, is about to issue its peremptory mandamus against said circuit court, notwithstanding the fact that the judge thereof had appealed from its final judgment awarding said mandamus, and given the bond required by said section for the purpose of staying said proceedings until said appeal could be heard in this court. The petition alleges that, by force of said statute, the granting of said appeal and the approval of said bond operate a supersedeas and stay all further proceedings in the matter pending said appeal; that said court of appeals thereafter had no further jurisdiction of said cause, and no power to order said mandamus, and that its subsequent action to that effect would be an act against the constitution and laws of the State, clearly beyond its authority, as well as prejudicial to the interest of the relator--who is the defendant in said verdict and in said contemplated judgment, so about to be coerced, and who has no other adequate remedy in the premises. On the other hand, it is...