State ex rel. Wilkerson v. Kelly

• Decision Date: 02 July 1940
• Docket Number: No. 36377.,36377.
• Parties: STATE OF MISSOURI at the relation of W.P. WILKERSON, Prosecuting Attorney of Scott County, Relator, v. FRANK KELLY, Judge of the Circuit Court in and for Scott County.
• Court: Missouri Supreme Court

142 S.W.2d 27 STATE OF MISSOURI at the relation of W.P. WILKERSON, Prosecuting Attorney of Scott County, Relator,
v.
FRANK KELLY, Judge of the Circuit Court in and for Scott County. No. 36377. Supreme Court of Missouri. Court en Banc, July 2, 1940.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

David E. Blanton and W.P. Wilkerson for relator..

(1) Prohibition will lie when an officer threatens to act beyond or outside of his jurisdiction and is designed to prevent the exercise of judicial power in cases where there is want of jurisdiction in the court to exercise such authority. State ex rel. v. McQuillin, 262 Mo. 266; State ex rel. v. Pratt, 183 Mo. App. 213; State ex rel. v. Klene, 207 S.W. 496; State ex rel. Fowler v. Calvird, 93 S.W. (2d) 1106. (2) The Supreme Court may by prohibition restrain an inferior tribunal from exceeding its jurisdiction, or keep a court within the limits of its powers in any matter, or from acting in a cause in which it is without jurisdiction. State ex rel. v. Latshaw, 237 S.W. 770, 291 Mo. 592; State ex rel. v. Seehorn, 246 Mo. 585; State ex rel. v. Wiethaupt, 238 Mo. 162; State ex rel. v. Fort, 210 Mo. 512. (3) Where the record of a judgment shows on its face that the court did not have authority to grant the particular relief which it did grant, the judgment is void and subject to collateral attack. Gray v. Clements, 286 Mo. 100, 227 S.W. 113; Charles v. White, 214 Mo. 208. (4) If a judgment determines a matter not in issue and adjudicates rights of the parties in a manner not warranted by the pleadings, that portion of the judgment is void and may be collaterally attacked. Raney v. Home Ins. Co., 246 S.W. 57, 213 Mo. App. 1; Burns v. Ames Realty Co., 31 S.W. (2d) 276; Charles v. White, 214 Mo. 208. (5) The granting of a parole, whether it be deemed a conditional suspension of the sentence or a conditional parole, is no part of the trial of the cause which culminates in a judgment of conviction, or is it in any sense an incident thereto. State ex rel. v. Montgomery, 297 S.W. 31. (6) In construing statutes, all statutes applicable to subject involved must be read and construed together and, if possible, harmonized. State ex rel. Halsey v. Clayton, 226 Mo. 302; Little River Drain. Dist. v. Lassater, 29 S.W. (2d) 718, 325 Mo. 493; State ex rel. v. Smith, 67 S.W. (2d) 50, 334 Mo. 653; State v. Naylor, 40 S.W. (2d) 1084, 328 Mo. 335. (7) The Springfield Court of Appeals is without jurisdiction to hear and determine writs of habeas corpus, the subject matter of which is not in its appellate jurisdiction, and is without jurisdiction to exercise superintending control over the lower courts in such cases. Art. VI, Secs. 4, 5, Amend. of 1884; Art. VI, Secs. 3, 12, Const. 1875; State ex rel. Rogers v. Rombauer, 105 Mo. 103; State ex rel. Blakemore v. Rombauer, 101 Mo. 499; State ex rel. Sale v. Nortoni, 201 Mo. 1; State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; Duraflor Products Co. v. Pearcy, 29 S.W. (2d) 88; State ex rel. Ghan v. Gideon, 119 S.W. (2d) 89.

Ray B. Lucas for respondent.

(1) Certiorari is the proper remedy to pursue to have the Supreme Court review the opinion of an inferior court to determine whether or not the inferior court has exceeded its jurisdiction. Failure of relator to pursue such remedy deprives relator from seeking a review of the Court of Appeals' decision by subsequent application for prohibition to prevent the mandate of the Court of Appeals being executed. State...