State ex rel. Lamport v. Robinson
| Decision Date | 13 April 1914 |
| Parties | THE STATE ex rel. EDWARD J. LAMPORT v. HARRIS ROBINSON, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Writ denied.
Martin J. O'Donnell for relator.
(1) The circuit court was without jurisdiction to finish the trial at the May, 1913, term. State v. Jeffors, 64 Mo. 376; 12 Cyc. 271; 12 Ency. Pl. & Pr., p. 658; 24 Cyc. 263; Sec 4015, R. S. 1909; Laws 1911, p. 174; Laws 1913, pp. 217-18; Rules of the Circuit Court, Jackson County, Mo. Sec. 3876, R S. 1909, did not give the court and jury power to proceed with the trial. This statute was in force at the time of the decision in the Jeffors case, supra. (2) The rules of the circuit court of Jackson county have the force and effect of law and when a mistrial occurred by the discharge of the jury it was the duty of respondent, acting as judge of said court to immediately return said case to the general docket. Rule 22, Circuit Court, Jackson County, Missouri; Laws 1913, pp 211-12; Rigdon v. Ferguson, 172 Mo. 52; 2 Bouvier's Law Dictionary, p. 428. "'Mistrial' is equivalent to no trial." Baird v. Railroad, 61 Iowa 359. Rule 22 requires that, "whenever the trial of a case shall result in a mistrial, said case shall be immediately returned to the general docket." (3) The trial court having plainly erred on a point of practice in misap prehending its own rules, and also in misapprehending a plain rule of law, and thereby prevented a trial of the cause, mandamus will lie from the Supreme Court to remedy the error. State ex rel. v. Phillips, 97 Mo. 332.
J. C. Rosenberger, Kersey Coates Reed and Rollin E. Talbert for respondent.
(1) This is not a proper case for mandamus, irrespective of whether the rulings of the respondent were right or wrong. Mandamus will not lie to annul judgments, however erroneous. In such cases appeal or error are exclusive remedies. State ex rel. v. Thurman, 232 Mo. 130; State ex rel. v. Smith, 105 Mo. 6; Williams v. Judge, 27 Mo. 225; Dunklin County v. District Court, 23 Mo. 453; State ex rel. v. Court of Appeals, 87 Mo. 374; State ex rel. v. Lafayette County, 41 Mo. 225; State ex rel. v. Walker, 85 Mo.App. 247; State ex rel. v. Broaddus, 207 Mo. 124. (2) Relator since the institution of this suit, to-wit, November 6, 1913, has filed a motion before respondent judge to vacate the orders overruling his motions for a new trial and in arrest and for judgment non obstante; which motion is now pending before respondent, so that relator by said motion is now attempting to obtain in the circuit court all the relief he now asks in this court, and wherefore this mandamus should be refused. Relator cannot proceed both in the circuit court and in this court, especially by mandamus. By filing such motion to vacate, the relator has conclusively admitted that he has not exhausted his alleged remedy before respondent and for this reason alone mandamus should be denied. State ex rel. v. Weeks, 93 Mo. 499; State ex rel. v. Miller, 129 Mo.App. 390. (3) By express statutory enactment the ending of the term did not destroy the court's power to proceed with the trial, nor did it operate to discharge the jury. State v. Samuel, 3 Mo. 69; R. S. 1909, sec. 3876; Pike Co. v. Hammons, 129 Ind. 380; Sutherlin v. State, 150 Ind. 154; Machine Co. v. McCaffrey, 139 Ind. 558; People v. Warden, 117 App.Div. (N.Y.) 154, 192 N.Y.S. 374; Mapstrick v. Range, 9 Neb. 394; State v. Hasty, 76 S.C. 105; State v. McGinsey, 80 N.C. 377; Briceland v. Commonwealth, 74 Pa. St. 463; Carroll v. Commonwealth, 84 Pa. St. 107.
OPINIONIn Banc
Mandamus.
-- Mandamus to compel a division of the circuit court of Jackson County to return a case to the general docket of said court.
The facts upon which our alternative writ was issued in this case are as follows:
The respondent is the judge of division No. 9 of the circuit court of Jackson county, and in administering the duties of said office was governed by certain rules which had been theretofore adopted and promulgated by the several judges of the circuit court of said county sitting as a court in banc.
Rule 13 requires the clerk to place all cases on one general docket.
Rule 18 provides that the several judges of the circuit court of Jackson county shall select one of their number as presiding judge, who shall designate the cases to be heard in each division of said court.
Under the statutes the regular March term of the circuit court of Jackson county expired on Saturday, the 10th day of May, 1913, and the regular May term of said court convened on Monday, the 12th day of the same month.
On May 5, 1913, while the March term of division No. 9 of said court was in session, and while respondent, as judge of said court, possessed full jurisdiction of a case wherein the relator, Edward J. Lamport, was plaintiff, and the Aetna Life Insurance Company was defendant, relator called the attention of respondent to the fact that there was probably not sufficient time before the end of said March term to try said cause, and requested respondent not to impanel a jury in said last named cause, for the reason that, before the trial could be completed, the end of the term would effect the discharge of such jury, thereby causing a mistrial. Respondent, as such judge, ignored relator's suggestion, impaneled a jury and ordered the parties to proceed with the trial of the aforesaid cause, to which action the relator excepted.
The jury was impaneled and the trial of the aforesaid cause proceeded with, before respondent and said jury, until Friday, the 9th day of May, 1913, when the further trial of said cause, before the same jury, was continued to Monday the 12th day of May, 1913 (the last named date being the time designated by law for the regular May term of said court to convene). Saturday, May 10, 1913, was consumed by respondent in hearing and disposing of motions in other cases pending in his court, and at the end of that day he finally adjourned said court to court in course. On May 12, 1913, the respondent convened the regular May term of said division No. 9 of the circuit court of Jackson county, whereupon relator moved the respondent to make an order discharging the petit jury, which had theretofore been impaneled and sworn in the case of Lamport v. Insurance Co., and to return the case to the general docket, for the reason that the expiration of the March term of said court had rendered the persons constituting the jury ineligible to further serve in that capacity, thereby resulting in a mistrial of the case within the purview of Rule 22, hereinbefore set out. This motion was by respondent overruled, and the parties ordered to proceed with the trial of the cause before the jury selected and sworn at the March term, to which order relator excepted.
The said cause of relator against the Aetna Life Insurance company was then proceeded with from day to day until May 17, 1913, when a verdict was rendered in favor of defendant by nine of the jurors selected at said March term, 1913.
Upon the coming in of the aforesaid verdict the relator filed a motion praying the respondent to render judgment in favor of relator, notwithstanding the verdict of the jury, which last named motion was by respondent overruled, and relator excepted.
Relator, in a timely manner, also filed a motion for new trial, with affidavits in support thereof; also a motion in arrest of judgment, which motions for new trial and in arrest were continued until the September term, 1913, of respondent's said court, and on the 17th day of September, 1913, were overruled, to which ruling relator excepted.
Relator did not voluntarily take part in the trial of his case against the Aetna Life Insurance Company after the end of the March term, 1913, but participated in the trial...
To continue reading
Request your trial