State ex rel. Priddy v. Gibson

• Citation: 86 S.W. 177,187 Mo. 536
• Parties: THE STATE ex rel. PRIDDY et al. v. GIBSON, Judge
• Decision Date: 16 March 1905
• Court: United States State Supreme Court of Missouri

86 S.W. 177

187 Mo. 536

THE STATE ex rel. PRIDDY et al. v. GIBSON, Judge

Supreme Court of Missouri

March 16, 1905

Peremptory writ denied.

S. P Forsee, W. C. Forsee, H. H. McCluer and M. M. Bogie for relators.

(1) After the time had expired within which plaintiffs were given to file their bills of exceptions, respondent's act in signing the bills of exceptions was a nullity, unless he did so in pursuance of an order of this court; hence, it is no defense to this action that respondent signed the bills of exception during the month of December, 1904. "Counsel cannot confer jurisdiction." Bank v. Barker, 145 Mo. 367; State ex rel. v. Gates, 143 Mo. 63; State v. Schuchmann, 133 Mo. 111; State v Simmons, 124 Mo. 443; State v. Britt, 117 Mo 584; State v. Moseley, 116 Mo. 545; State v. Apperson, 115 Mo. 470; State v. Scott, 113 Mo. 559. (2) The fact that the time given by the court to file bills of exceptions had expired before this action was begun is not sufficient to prevent the issuance of this writ. State ex rel. v. Philips, 96 Mo. 570; Merrell on Mandamus, secs. 192, 50, 80; People v. Hawes, 25 Ill.App. 326; People v. Hawes, 30 Ill.App. 94. (3) The fact that Judge Gibson's term has expired since he was served with the alternative writ is no reason why the peremptory writ should not be awarded. He was served with the alternative writ before his term had expired. The action is against the judge of the circuit court, though Judge Gibson is personally named as the respondent. Thompson v. United States, 103 U.S. 480; High on Ex. Rem., sec. 39; 14 Am. and Eng. Ency. Law (1 Ed.), 220. If the respondent, because his term has expired before the peremptory writ could have been awarded in this case, could not be compelled to sign the bills of exceptions, this court can "order that the bills of exceptions be considered a part of the record" and that they be filed by the circuit clerk. People v. Pearsons, 3 Scam. 270.

C. O. Tichenor, O. H. Dean, Lathrop, Morrow, Fox & Moore and Samuel W. Sawyer for respondent.

(1) The respondent having already performed the acts which the relators seek in this proceeding to compel him to perform, a peremptory writ should be refused. 19 Am. and Eng. Ency. Law (2 Ed.), 758; Wood, Mandamus, 3; Spelling, Injunctions and Other Extraordinary Remedies, secs. 1369, 1377, 1381, 1385, 1386, 1413; High, Extraordinary Remedies, secs. 188, 190, 206, 211; State ex rel. v. Schofield, 41 Mo. 39; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Slick, 86 Ind. 501; State ex rel. v. Newman, 25 Neb. 35; Weeden v. Arnold, 5 Okla. 578; Hice v. Orr, 16 Wash. 163; Johnson v. Ward, 82 Ala. 486; People ex rel. v. Altgeld, 43 Ill.App. 460. (2) Inasmuch as the respondent no longer holds a judicial office, he cannot be compelled by mandamus to do a judicial act. High, Extraordinary Remedies, secs. 37, 38; R.S. 1899, sec. 731; Consaul v. Liddell, 7 Mo. 250; Woolfolk v. Tate, 25 Mo. 597; Fulkerson v. Houts, 55 Mo. 301; Cocker v. Cocker, 56 Mo. 180; State ex rel. v. Perkins, 139 Mo. 106; Richardson v. Assn., 156 Mo. 407; Fehlhauer v. St. Louis, 178 Mo. 635; Cranor v. School District, 18 Mo.App. 397; Sahlein v. Gum, 43 Mo.App. 315; Glaves v. Wood, 78 Mo.App. 351; Patterson v. Yancey, 97 Mo.App. 681; Bailey v. Coe, 79 S.W. 1158; People v. Altgeld, 43 Ill.App. 460; Smith v. Baugh, 32 Ind. 163; Phelps v. Conant, 30 Vt. 277; DeHaas v. Circuit Judge, 46 Mich. 12; Leach v. Aitken, 91 Cal. 484; State ex rel. v. Allyn, 7 Wash. 285. (3) The relators' laches is of itself sufficient to preclude the issuance of a peremptory writ. Spelling, Injunctions and Other Extraordinary Remedies, sec. 1382; Merrill, Mandamus, sec. 87; State ex rel. v. Finley, 74 Mo.App. 213; People v. Seneca Common Pleas, 2 Wend. (N.Y.) 264; People v. Collis, 6 A.D. 467; Vason v. Gardner, 70 Ga. 517; Anderson v. Burkhart, 5 P. 612; In re Depeaux's Est., 118 Cal. 522; McConoughey v. Torrance, 124 Cal. 330.

S. P. Forsee, W. C. Forsee, H. H. McCluer and M. M. Bogie for relators in reply.

When it is remembered that the judge tried ten cases together, but required us to make a separate record and separate bills of exceptions in each, and that on December 6, 1903, he attached to each bill of exceptions several hundred pages of objections, and each objection to each bill had to be carefully examined; that the records in each case had to be prepared and examined after the entries were made, the court will doubtless conclude that it was no ordinary task. The record of the cases at bar shows that no steps by the relators, however simple, have been taken in any of these cases, without the combined opposition of the numerous able lawyers representing the defendants and respondent herein, all of which has consumed considerable time. The respondent herein took about six months to prepare his objections to the bills. It was also admitted on the argument of this cause that, during a great portion of the year 1904, Judge Gibson was in the State of California trying to improve his health; that he returned some time after the last November election. Service could not have been had on him in the case at bar during that time. In the spring of 1904 the suit of G. W. Priddy et al. v. McKenzie, was filed in this court, and at this October term of this court it was determined in favor of the relators herein. The ruling in that case by this court (if Judge Gibson wanted to abide by the final determination of the questions involved), ought to have made the case at bar unnecessary. A proper consideration for the time of this court and the costs of litigation should have prompted respondent's counsel to agree to try one of these cases on the bill of exceptions in the McKenzie (or any other) case. The bills of exceptions are all carbon copies. Respondent, by his act in requesting the bills of exceptions to be sent to him, in his signing and filing them, indicated that he would abide by the decision of this court in the McKenzie case. Yet he was unwilling to permit the proper orders to be made in this court, so that what he did would have some binding force. Are not the steps heretofore taken by us in these cases sufficient to excuse us for not bringing ten separate suits against respondent in the first instance? Laches are imputed to those who acquiesce in the ruling of the court. We have never acquiesced in the ruling of the trial court in these cases. We have objected to Judge Gibson trying these cases, from the beginning. We have made two applications for writs of prohibition. As soon as possible we file the McKenzie mandamus suit, and in one way or another we have been pressing our claim in this court for bills of exceptions in these cases. Multiplicity of suits are not encouraged by the court. We were governed by a rule of public policy, viz., to avoid a multiplicity of suits in this matter, if possible. Also out of respect for the trial judge, we did not flood him with suits and costs, and desired not to do so, if it could be avoided. Merrill on Mandamus, sec. 87.

OPINION

In Banc.

Mandamus.

LAMM J.

Original mandamus, instituted here on December 29, 1904; alternative writ, with rule to show cause on January 3, 1905, issued on same day, and served on respondent December 31, 1904.

On respondent's making return, relators filed their motion for judgment on the pleadings, and thereby an issue at law is joined for determination.

Such issue demands a summary of the material allegations pro and con, in the making of which, as appears in due course, our labors are lightened because of certain issues settled in a former case in this court between the same relators on one side and the same respondent on the other.

It appears from the recitations of the alternative writ, borrowed from the showing made in relators' petition, that Priddy et al., the present relators, commenced their certain nine actions in the circuit court of Jackson county, some being assigned to division 1, and some to other divisions of that court, and all returnable to its January term, 1903. These suit were against divers and sundry separate defendants, including one Mackenzie, and each petition contained two counts, one in plain ejectment, and another having for its purpose the determination of the interests and the quieting of the title of relators in the specified land, under section 650, Revised Statutes 1899.

Such proceedings were had in all these cases as resulted in their gathering and remaining in the division of said court over which respondent presided, and this over the protest of relators and exceptions saved.

Relators then filed their duly-verified application for a change of venue in each of said cases, setting forth, inter alia, that respondent and the other judges of said court (naming them) were (1) prejudiced against relators and each of them, (2) that the opposite party had an undue influence over the minds of said judges and the mind of each of them, (3) that the opposite party had undue influence over the inhabitants of said county of Jackson, and (4) that the inhabitants of said county were prejudiced against each of relators. With such filing, relators paid to the clerk of said court the statutory sum of ten dollars in each cause.

On June 30, 1903, respondent heard said applications for a change of venue, with the evidence offered, and denied all and every of them, to which ruling relators objected and saved exceptions.

Defendants in said several causes had theretofore answered in common form and thereby pleaded certain legal defenses, together with such particular estoppels in pais and other equitable matters as entitled them to affirmative relief which they duly prayed and which made the causes cognizable in a court of equity before a chancellor. In this...