State ex rel. Potter v. Riley

• Decision Date: 13 April 1909
• Citation: 118 S.W. 647,219 Mo. 667
• Parties: THE STATE ex rel. JANE C. POTTER et al. v. HENRY C. RILEY, Judge
• Court: Missouri Supreme Court

118 S.W. 647

219 Mo. 667

THE STATE ex rel. JANE C. POTTER et al. v. HENRY C. RILEY, Judge

Supreme Court of Missouri

April 13, 1909

PEREMPTORY WRIT DENIED.

Fordyce Holliday & White for relators.

(1) 1 L. D. Grove's authority as attorney for James M. Potter being totally dissolved by Potter's death, Grove had no authority to move for a dismissal. Railroad v Woodson, 110 Mo.App. 208; Prior v. Kiso, 96 Mo. 303; Judson v. Love, 35 Cal. 463; Risley v. Fellows, 10 Ill. 531; Gleason v. Dodd, 4 Metc. (Mass.) 333; Weeks on Attorneys at Law (2 Ed. 1892), secs. 248, 256. 2. There had been no administration on Potter's estate, hence Grove had no authority to appear for Potter's personal representative. Prior v. Kiso, 96 Mo. 303; Weeks on Attorneys at Law (2 Ed. 1892), sec. 256. 3. Relators gave Grove no authority to appear for them, and the attorney of the ancestor does not become the attorney for the heirs without a new appointment. Putman v. Van Buren, 7 How. Pr. 31; Weeks on Attorneys at Law (2 Ed. 1892), sec. 256. 4. After the death of Potter, no steps should have been taken in the case until Potter's death had been properly suggested and the case revived. Any steps taken after Potter's death and before the legal suggestion thereof are nullities. R. S. 1899, sec. 756; Sargeant v. Rowsey, 89 Mo. 617; Railroad v. Woodson, 110 Mo.App. 208; Judson v. Love, 35 Cal. 463. 5. The dismissal ordered after the death of Potter and the consequent revocation of the authority of Potter's attorney is ineffectual and void as to relator's rights; there was no party before the court as to the interest of relators in the lands in controversy, and no one authorized to represent their interests. The title to the land had descended to the relators instantly on Potter's death intestate, and no notice to come in had been given to the heirs. Voorhis v. Gamble, 6 Mo.App. 1; Sargeant v. Rowsey, 89 Mo. 622; Rentschler v. Jamison, 6 Mo.App. 135; Weller v. Easton, 81 Mo.App. 660; Hinkel v. Kerr, 148 Mo. 48; Judson v. Love, 35 Cal. 463. 6. Even if it were possible to conceive that Grove had authority to dismiss the case, respondent had no authority or right to do so. Respondent, in making his order of dismissal violated a mandatory statute, Sec. 639, R. S. 1899, which was at that time (1896) in force as Sec. 2084, R. S. 1889, which provides that after a case has been finally submitted the court cannot allow it to be dismissed. 7. A suit cannot be dismissed after a final decree has been rendered and after the term at which the final decree was rendered has elapsed, even with consent of the parties, as such decision creates and fixes new rights and interests in the subject-matter of the controversy, and an attempted dismissal is coram non judice and void. Warren v. Manwarring, 173 Mo. 21; Danforth v. Love, 53 Mo. 217; Mohler v. Wiltberger, 74 Ill. 163; Long v. Thwing, 9 Ind. 179; Lashley v. Hogg, 11 Vesey, Jr. 602; Clarkson v. Scrogins, 2 T. B. Monroe (Ky.) 52; Egg v. Devey, 11 Beavan 221. There can be but one final judgment in a case. If the court has rendered a final judgment at one term, another final judgment rendered at any subsequent term is void. Warren v. Manwarring, 173 Mo. 21. 8. It is now the plain duty of the respondent to rescind its void order of dismissal and to redocket and proceed with the case according to law and justice, so that plaintiff's death, which occurred prior to said dismissal and subsequent to a final submission, final judgment and the expiration of the term of court of said final judgment, may be properly suggested, the cause revived and exceptions filed to the report of the referee in said case passed upon, and the relators' rights in the matters in controversy set at rest. State ex rel. v. Nabor's Heirs, 7 Ala. 459; Ex parte Swan, 23 Ala. 192. (2) Mandamus lies to compel a court to reinstate and proceed with a cause properly before it, which it has improperly dismissed or dropped from its docket. Miller v. Richardson, 1 Mo. 310; Astor v. Chambers, 1 Mo. 191; State ex rel. v. O'Brien, 102 Mo. 254; State ex rel. v. Cape Girardeau Court, 73 Mo. 560; State ex rel. v. Neville, 157 Mo. 386; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Dearing, 173 Mo. 492; State ex rel. v. Klein, 140 Mo. 502; Costello v. St. Louis Circuit Court, 28 Mo. 259; Austin v. Probate Court, 35 Mo. 198; State ex rel. v. Renick, 157 Mo. 292; State ex rel. v. Gideon, 119 Mo. 94; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. McCracken, 60 Mo.App. 650; Insurance Co. v. Comstock, 16 Wall. (U.S.) 258; Ex parte Bradstreet, 7 Peters (U.S.) 634; People ex rel. v. Judge Circuit Court, 27 Mich. 303; People ex rel. v. Judge Circuit Court, 30 Mich. 98; Weeks v. Circuit Judges, 73 Mich. 256; High, Extra. Rem. (3 Ed.), secs. 250, 256, 258. 1. It was the ministerial and statutory duty of respondent not to allow the case in Mississippi county to be dismissed after it had been finally submitted. Respondent had no discretion. R. S. 1899, sec. 639; R. S. 1889, sec. 2084; State ex rel. v. McCracken, 60 Mo.App. 650; State ex rel. v. Reynolds, 121 Mo.App. 699; State ex rel. v. Meier, 143 Mo. 439. 2. Neither appeal nor writ of error would lie from a voluntary dismissal or a motion to set aside a voluntary dismissal. Koger v. Kays, 57 Mo. 329. 3. Neither appeal nor writ of error lies from a refusal to proceed with a case or from an order dropping the case from the docket; mandamus is the proper remedy. Miller v. Richardson, 1 Mo. 310; Astor v. Chambers, 1 Mo. 191; State ex rel. v. O'Bryan, 102 Mo. 254; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618. 4. Where the remedy by appeal or writ of error lies, but is not as adequate or as speedy as mandamus, mandamus will lie. State ex rel. v. Reynolds, 121 Mo.App. 699; State ex rel. v. O'Bryan, 102 Mo. 254; State ex rel. v. Osborne, 24 Mo.App. 309; State ex rel. v. Lafayette Co., 41 Mo. 221; State ex rel. v. Johnson, 103 Wis. 591; State ex rel. v. Clayton, 34 Mo.App. 563. 5. The remedies of appeal and writ of error would be too slow and totally inadequate in this case. Remedies to be adequate "must reach the end intended and actually compel the performance of the duty refused." State ex rel. v. McCracken, 60 Mo.App. 650; State ex rel. v. Renick, 157 Mo. 292.

Lew R. Thomason for respondent.

The circuit court of Mississippi county, having jurisdiction of the subject-matter of the suit in the case of James M. Potter vs. Thomas Bullivant and others, and having acquired jurisdiction of the persons of the parties thereto, its judgment of dismissal, although rendered after the death of Potter, the plaintiff, is not void or subject to collateral attack; it is voidable only, and can only be set aside in an appropriate proceeding, and is valid until set aside. Black on Judgments, sec. 200; Shea v. Shea, 154 Mo. 599; Hinkle v. Kerr, 148 Mo. 43; Coleman v. McAnulty, 16 Mo. 193. The judgment of dismissal not being void, but only irregular, cannot be set aside upon a motion filed eleven years after its rendition. R. S. 1899, sec. 795; Jamison v. Kinsey, 85 Mo.App. 301; Craig v. Smith, 65 Mo. 536; Downing v. Still, Admr., 43 Mo. 316; Burgess v. Hitt, 21 Mo.App. 315; Clowser v. Noland, 72 Mo.App. 217. While a void judgment may be assailed collaterally, this rule does not extend to judgments which are erroneous, and voidable only. In such cases the aggrieved party must seek his remedy by appeal, or in some other appropriate proceeding to correct the alleged error. Freeman v. Thompson, 53 Mo. 183; McNair v. Biddle, 8 Mo. 257; Van Fleet Collateral Attack, secs. 602-3. Mandamus will not lie to control the discretion of a tribunal acting judicially. State ex rel. v. Flad, 108 Mo. 620; State ex rel. v. Fort, 160 Mo. 97; State ex rel. v. McAuliff, 48 Mo. 112; State ex rel. v. Wilson, 49 Mo. 146; State ex rel. v. McGown, 89 Mo. 156; State ex rel. v. Smith, 105 Mo. 6; High on Extra. Remedies, secs. 147-157. Mandamus will lie, only, where the party complaining has a clear legal or equitable right and has no other specific remedy; it will not lie to correct the alleged errors of the trial court; this can be done only upon appeal or writ of error as the case may require. State ex rel. v. Field, 107 Mo. 450; State ex rel. v. Mossman, 112 Mo.App. 540; Martin v. Martin, 27 Mo. 225; Dunklin Co. ex rel. v. Dist. Court, 23 Mo. 449; State ex rel. v. Ingleman, 86 Mo. 551; State ex rel. v. St. Louis Court, 87 Mo. 374; Costello v. St. Louis Circuit Court. 28 Mo. 259; Ex parte De Groot, 6 Wall. 497.

OPINION

In Banc

Mandamus.

GRAVES J.

This is an original proceeding in this court by which relators seek by mandamus to compel Hon. Henry C. Riley, Judge of the Circuit Court of Mississippi county, to set aside an order of dismissal heretofore entered by him in said court in a cause then pending wherein James M. Potter was plaintiff and Thomas Bullivant et al., were defendants, and to reinstate the cause, and to proceed with said cause and to hear and determine the same.

This court issued its alternative writ of mandamus, the allegations of which are, in substance, as follows: That relators and one Francis J. Bullivant, son of Thomas Bullivant, are the only heirs at law of James M. Potter deceased, who died January 5, 1896; that relators are all non-residents of Missouri, but said Francis J. Bullivant is a resident of Missouri; that two of relators (naming them) are minors and appear by their next friend, Samuel W. Fordyce; that at the time of his death, James M. Potter was the owner of certain real estate in Butler county, Missouri; that in September, 1890, said James M. Potter instituted in the circuit court of Butler county an equitable action against Thomas Bullivant, Stephen M. Chapman and...