State ex rel. Morasch v. Kimberlin, No. 64628

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDONNELLY; HIGGINS and GUNN, JJ., and KELSO; RENDLEN; BLACKMAR; FINCH, Senior Judge, concurs in result and concurs in opinion concurring in result of BLACKMAR; BLACKMAR
Citation654 S.W.2d 889
Decision Date16 August 1983
Docket NumberNo. 64628
PartiesSTATE ex rel. George MORASCH, II, Relator, v. Honorable William M. KIMBERLIN, Judge, Circuit Court, Cass County, Respondent.

Page 889

654 S.W.2d 889
STATE ex rel. George MORASCH, II, Relator,
v.
Honorable William M. KIMBERLIN, Judge, Circuit Court, Cass
County, Respondent.
No. 64628.
Supreme Court of Missouri,
En Banc.
Aug. 16, 1983.

Page 890

June Clark, Danny L. Curtis, Kansas City, for relator.

Christopher C. Marsh, Kansas City, for respondent.

DONNELLY, Judge.

On December 10, 1980, Colleen Morasch filed a petition for damages against George Morasch. The petition for damages contained an instruction to the clerk of the court to: "Hold for entry--Do not serve." Colleen first requested service of process on December 14, 1981, one year and one day after the expiration of the applicable statute of limitation. § 516.120(4), RSMo 1978. George filed a motion to dismiss, alleging Colleen's cause of action was barred by the statute of limitation. Respondent Judge Kimberlin, after hearing the parties on the question, overruled the motion to dismiss. An application for prohibition was filed in the Western District of the Court of Appeals seeking to prohibit Judge Kimberlin from proceeding to trial. A preliminary order was issued by the Court of Appeals and, after briefing and argument, was made absolute. The cause was transferred to this Court on certification of a dissenting judge.

The question on this appeal is whether a preliminary rule in prohibition should be made absolute against a circuit judge who, unless prohibited, intends to proceed to trial after ruling that § 516.120(4), RSMo 1978, does not bar Colleen's claim.

In State ex rel. Union Depot Ry. Co. v. Southern Ry. Co., 100 Mo. 59, 61, 13 S.W. 398 (1890), this Court held that a writ of prohibition did not lie to prevent the circuit court of the City of St. Louis from entertaining proceedings for the condemnation of property on the ground that it had no jurisdiction over the special class of property involved in the proceedings and said:

"We are of the opinion that the question thus raised is not a proper one for our decision upon this application. Where the action or course which a court is about to adopt is such as it has lawful power to take, it should not, ordinarily, be prohibited from taking it.

"Whether the particular facts on which the court proceeds in that regard are, or are not, sufficient to justify its exercise of jurisdiction, is a question of law, the solution of which either way cannot impair the court's right to apply its judicial power in the premises according to its view of the law and of the facts before it. For instance, where a court has jurisdiction to render judgments, in ordinary civil causes, it would be manifestly improper

Page 891

to issue a writ of prohibition against it on an application alleging that it was about to pronounce such a judgment on a petition which did not state a cause of action, but which the trial court had held sufficient, or because the latter had ruled erroneously that the plaintiff had a legal capacity to maintain the action."

In 1912 and 1914, the Union Depot position was buttressed by Judge Lamm in State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347 (banc 1912) and State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72 (banc 1914). However, in 1936, this Court paid deference to the Union Depot position in State ex rel. Johnson v. Sevier, 339 Mo. 483, 490, 98 S.W.2d 677, 680 (banc 1936) and then said: "But, where a petition reveals that the pleader has not stated, and cannot state, a cause of action of which the circuit court would have jurisdiction, then prohibition will lie." The Johnson position proceeded through State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939) to State ex rel. Lumbermens Mutual Casualty Company v. Stubbs, 471 S.W.2d 268 (Mo. banc 1971). In Lumbermens, this Court made a preliminary rule in prohibition absolute against a judge who intended, unless prohibited, to rule that § 516.120, RSMo 1978, did not bar plaintiff's claim.

By contrast, the Supreme Court of California, in its treatment of the question before us, has remained on track. In 1890, in Bishop v. McKinley, 87 Cal. 226, 25 P. 435, 437 (1890), a case involving the exercise of eminent domain, the Supreme Court of California expressly adopted the Union Depot position. That position proceeded through Redlands High School Dist. v. Superior Court of San Bernardino County, 20 Cal.2d 348, 125 P.2d 490, 496, 497 (1942) to County of Santa Clara v. Superior Court, 4 Cal.3d 545, 483 P.2d 774, 775, 776, 94 Cal.Rptr. 158, 159, 160 (Bank 1971). In County of Santa Clara, the Supreme Court of California refused to enter a peremptory writ of prohibition against a judge who intended, unless prohibited, to proceed to trial after ruling that a statute of limitation did not bar plaintiffs' claim and said:

"The leading case of Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942, pronounced the rule that prohibition may be invoked only to restrain an act in excess of jurisdiction. One year later this court, in Redlands High School District v. Superior Court (1942) 20 Cal.2d 348, 125 P.2d 490, faced the problem of applying that decision to a case involving noncompliance with a claims requirement. There, the plaintiff brought a personal injury action in a justice court against the school district, but failed to file the claim that was then required under section 2.801 of the School Code. The justice court nevertheless gave judgment for plaintiff;...

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36 practice notes
  • State ex rel. O'Blennis v. Adolf, No. 49752
    • United States
    • Court of Appeal of Missouri (US)
    • 21 d2 Maio d2 1985
    ...the writ for the purposes of reviewing a denial of summary judgment or to correct trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983). But as stated in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) (Rendlen, J. concurring): ......
  • Schneider v. Union Elec. Co., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 15 d2 Janeiro d2 1991
    ...309, 314 (Mo.App.1981); Restatement (Second) of Judgments § 11 comment e (1982); 1 see also State ex rel. Morasch Page 225 v. Kimberlin, 654 S.W.2d 889, 893 (Mo. banc 1983) (Blackmar, J., concurring). It does not appear to us that the term "subject matter jurisdiction" has been used in the ......
  • State ex rel. Chassaing v. Mummert, No. 76649
    • United States
    • United States State Supreme Court of Missouri
    • 22 d2 Novembro d2 1994
    ...trial court error by writ of prohibition, however, should occur only in extraordinary circumstances. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891-92 (Mo. banc 1983). If the error is one of law, and reviewable on appeal, a writ of prohibition is not appropriate. Id. at Distinguish......
  • State ex rel. McNary v. Hais, No. 65426
    • United States
    • United States State Supreme Court of Missouri
    • 15 d2 Maio d2 1984
    ...the unfettered use of the writ of prohibition to allow interlocutory review of trial court error." State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo. banc 1983). It is well-established that "prohibition cannot be substituted for appeal." State ex rel. Vogel v. Campbell, 505 S.W.2d......
  • Request a trial to view additional results
36 cases
  • State ex rel. O'Blennis v. Adolf, No. 49752
    • United States
    • Court of Appeal of Missouri (US)
    • 21 d2 Maio d2 1985
    ...the writ for the purposes of reviewing a denial of summary judgment or to correct trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983). But as stated in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) (Rendlen, J. concurring): ......
  • Schneider v. Union Elec. Co., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 15 d2 Janeiro d2 1991
    ...309, 314 (Mo.App.1981); Restatement (Second) of Judgments § 11 comment e (1982); 1 see also State ex rel. Morasch Page 225 v. Kimberlin, 654 S.W.2d 889, 893 (Mo. banc 1983) (Blackmar, J., concurring). It does not appear to us that the term "subject matter jurisdiction" has been used in the ......
  • State ex rel. Chassaing v. Mummert, No. 76649
    • United States
    • United States State Supreme Court of Missouri
    • 22 d2 Novembro d2 1994
    ...trial court error by writ of prohibition, however, should occur only in extraordinary circumstances. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891-92 (Mo. banc 1983). If the error is one of law, and reviewable on appeal, a writ of prohibition is not appropriate. Id. at Distinguish......
  • State ex rel. McNary v. Hais, No. 65426
    • United States
    • United States State Supreme Court of Missouri
    • 15 d2 Maio d2 1984
    ...the unfettered use of the writ of prohibition to allow interlocutory review of trial court error." State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891 (Mo. banc 1983). It is well-established that "prohibition cannot be substituted for appeal." State ex rel. Vogel v. Campbell, 505 S.W.2d......
  • Request a trial to view additional results

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