State ex rel. Miller v. Smith, 6024.
| Decision Date | 03 October 1938 |
| Docket Number | No. 6024.,6024. |
| Citation | 120 S.W.2d 184 |
| Parties | STATE ex rel. MILLER v. SMITH, Judge. |
| Court | Missouri Court of Appeals |
Leo H. Johnson, of Neosho, for relator.
Ruark & Ruark, of Neosho, for respondent.
This is an original proceeding to obtain a writ of mandamus against Hon. Emory E. Smith, Judge of the Newton county circuit court, to require him to direct Lucille Patton, the official reporter of said court, to furnish relator without cost, a transcript of the evidence in the cause wherein relator was plaintiff and the Granby and Neosho Telephone Company, a Corporation of Granby, Missouri, was defendant, and in which cause judgment was rendered for the defendant and an appeal therefrom granted to this court.
The petition was filed August 24, 1938, and on the same date an alternative writ of mandamus was issued by this court but was not served. On the 29th day of August, 1938, respondent filed an instrument which we shall treat as a demurrer to the petition. In effect it waived the issuance and service of the alternative writ. In this situation, the petition becomes the first pleading. State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011.
Relator's petition states, in substance, that when she filed her petition against the defendant with the clerk of the circuit court, in vacation, she also filed an application to sue as a poor person, and that on said date, May 1, 1936, under the provisions of Section 1241, R.S.Mo.1929, Mo.St. Ann. § 1241, p. 1468, the clerk issued an original writ without deposit for fees; that when the cause was called for trial June 1, 1938, defendant filed its motion to require plaintiff to give bond for costs; that the court overruled both motions and permitted said cause to proceed, being heard at the regular October term of said court; that trial was had by a jury resulting in a verdict for defendant and judgment was entered accordingly; that thereafter, and during the same term, the court overruled plaintiff's motion for an order on the reporter for a transcript without pay of the proceedings. The petition further alleges that relator was at all times mentioned therein a poor person, and still is a poor person, and unable to prosecute her appeal in said cause unless respondent herein is required to order the court reporter to furnish her without cost a transcript of the proceedings of the lower court; that said reporter is an...
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