State ex rel. Spickerman v. Fox

• Decision Date: 31 October 1884
• Parties: THE STATE ex rel. SPICKERMAN v. FOX, Judge.
• Court: Missouri Supreme Court

85 Mo. 61

THE STATE ex rel. SPICKERMAN

v.FOX, Judge.

Supreme Court of Missouri.

October Term, 1884.

Prohibition.

WRIT DENIED.

J. P. Johnson and D. H. McIntyre for relator.

J. E. F. Edwards, Emerson & Cahoon for respondent.

HENRY, C. J.

This is an original proceeding in this court, the object of which is to prohibit Judge Fox from further proceeding in a habeas corpus case pending before him. We have not been favored with a statement of the case by either side, and have, consequently, been compelled, in order to learn the facts, to read a very lengthy petition written in a hand almost as difficult to decipher as the hieroglyphic inscriptions upon Egyptian monuments. What we make of it is this: The relator was appointed guardian of John Dasch, an infant, by the probate court of Madison county, in April, 1883, and in 1884, the mother of the infant appeared and filed her motion to set aside said order appointing relator guardian, which was sustained. Relator asked that an appeal be allowed him from the rescinding order to the circuit court, which was refused by the said probate court, and thereupon, he instituted a proceeding in the circuit court of said county to compel the allowance of his appeal. There was a judgment against him in the circuit court in that proceeding, from which he appealed to this court. Pending this mandamus cause, the mother of the child sued out of the circuit court a writ of habeas corpus, the object of which was to get the child out of relator's custody, who, in his return to that writ, gave a detailed history of the litigation up to that time, alleging the invalidity of the order of the probate court rescinding that appointing him guardian, charging that the person claiming to be the mother of the child (her name we have not been able to make out), was not in fact its mother; that she is an unfit person to be entrusted with its care and custody; that, in her motion to set aside the order vacating the order appointing relator guardian, she asked for the custody of her child, which was refused. This last matter, we take it, is pleaded as res judicata.

In this petition, after going over the whole ground, it is alleged that in said habeas corpus cause before Judge Fox, the return of the relator herein was filed on the twenty-ninth day of September, 1884, and, on that day, he filed an application for a continuance of said cause, in order to enable him to make preparation for a trial, and prepare for his defence, which was refused. Whet...