State ex rel. Wilkerson v. Kelly

• Decision Date: 02 July 1940
• Docket Number: 36377
• Citation: 142 S.W.2d 27,346 Mo. 416
• 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

346 Mo. 416

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

July 2, 1940

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 Spring-filed 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 ex rel. Barker v. Wurdeman, 163 S.W. 849, 254 Mo. 561; Mo. Const., Art. VI, Secs. 2, 3; Mo. Const., 1884 Amend., Sec. 8; State ex rel. Evans v. Broaddus, 149 S.W. 473, 245 Mo. 123; State ex rel. Manning v. Smith, 86 S.W. 867, 188 Mo. 167; State ex rel. Walker v. Dobson, 36 S.W. 238, 135 Mo. 1. (2) The Supreme Court will not draw to itself jurisdiction in the first instance on prohibition to determine the merits of controversies lodged in inferior courts, except on a clear showing of lack of jurisdiction as a matter of law, as distinguished from matter of fact, and that ordinary remedies by appeal, error, or certiorari are absent. Since certiorari could have been maintained, there is no occasion now for this court to grant the writ of prohibition. State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72. (3) The granting of a writ of prohibition by this court is discretionary, and relator is not entitled to the writ as a matter of right. A writ of prohibition should be granted only when there are no other remedies available to relator. (4) The Courts of Appeals of Missouri have jurisdiction to grant writs of habeas corpus in felony cases. Art. VI, Secs. 3, 12, Mo. Const.; Sec. 4, Amendment 1884, Art. VI, Mo. Const.; Sec. 1907, R. S. 1929; In re McDonald, 19 Mo.App. 370; Workman v. Turner, 283 S.W. 61; Child Sav. Institute v. Knobel, 37 S.W.2d 920; State ex rel. v. Mueller, 59 S.W.2d 719. (5) When the regular judge is disqualified in a criminal case, he thereafter has no power or authority to act further in the case, except to direct the substitution of another judge in his place. R. S. 1929, secs. 3648, 3649, 3650; State v. Myers, 14 S.W.2d 447; State v. McLain, 18 S.W.2d 16; State v. Creighton, 52 S.W.2d 556. (6) When the regular judge has been properly disqualified, he is without jurisdiction to pass upon a motion to revoke a parole which had been granted by the special judge, and any order made by the regular judge in the case thereafter is void. Thompson v. Sanders, 70 S.W.2d 1051; State ex rel. Attorney General v. Westhues, 286 S.W. 396; In re Heffron, 179 Mo.App. 639; In re Woolridge, 30 Mo.App. 612; Dusenberg v. Rudolph, 30 S.W.2d 94.

OPINION

Gantt, J.

Original action in prohibition. Relator seeks to prohibit a regular judge from calling a special judge to sit on the hearing of a motion to set aside a judgment granting a parole. In substance the facts follow: J. Sherwood Smith, under indictment for embezzlement of public funds, disqualified the circuit judge. A special judge was selected. Smith pleaded guilty. On said plea the special judge sentenced him to the penitentiary. On the same day Smith filed a petition for parole. Eleven of the twelve grand jurors who returned the indictment recommended a parole. The special judge paroled Smith.

In about three weeks the prosecuting attorney filed a motion to set aside the judgment granting the parole. The motion alleged, among other things, that Smith told the grand jurors that he (Smith) had paid all of his several shortages to the county and city; that he also told them that the prosecuting attorney would consent to a parole for that reason; that Smith made said statements to induce the grand jurors to recommend a parole; that said statements influenced the grand jurors; that all of said statements were false and untrue, and thereby a fraud had been perpetrated on the court. Wherefore, he prayed the court to set aside the judgment paroling Smith.

Smith was served with process. Thereupon he filed a motion challenging the jurisdiction of the regular judge to sit on the hearing of the motion to set aside the judgment granting the parole, for the reason he had been disqualified to sit as judge in the criminal case (State v. Smith) in which Smith was charged with embezzlement. The regular judge overruled the motion challenging his jurisdiction. In due course evidence was heard by the regular judge on the motion to set aside the judgment. On submission of the cause he sustained the motion, set aside said judgment, and ordered Smith committed to the penitentiary under the sentence on his plea of guilty to the indictment.

In ruling the motion to set aside the judgment granting the parole, the regular judge found that said judgment was procured by fraud practiced upon the court in the very act of obtaining the judgment.

On the petition of Smith, the Springfield Court of Appeals issued a writ of habeas corpus. The sheriff made return to the writ, alleging that he had lawful custody of Smith under said commitment. Smith replied to the return by challenging the jurisdiction of the regular judge to hear the motion to set aside the judgment granting the parole...