State ex rel. Wittenbrock v. Wickham

• Decision Date: 31 October 1877
• Citation: 65 Mo. 634
• Parties: THE STATE, EX REL. WITTENBROCK, RELATOR v. WICKHAM.
• Court: Missouri Supreme Court

65 Mo. 634

THE STATE, EX REL. WITTENBROCK, RELATOR

v.WICKHAM.

Supreme Court of Missouri.

October Term, 1877.

Petition for mandamus to compel Hon. John Wickham, one of the judges of the St. Louis circuit court, to sign a bill of exceptions.

Sam. C. Reid for relator.

The writ of mandamus will lie to compel the performance of a judicial act. State v. Wilson, 49 Mo. 146; Castello v. St. Louis Cir. Ct., 28 Mo. 259; and to compel a judge to sign a bill of exceptions. State v. Hall, 3 Cold. (Tenn.) 255.

Lay & Belch with Chester H. Krum for respondent.

The respondent is not required to appear in person, and the return is not required to be under oath. State ex rel. Att'y Gen'l v. Seay, 64 Mo. 89.

HENRY, J.

The petition states that on the trial of a cause in which the present relator was plaintiff, and Chester H. Krum, adm'r, was defendant, before Hon. John Wickham, one of the judges of the circuit court of St. Louis county, certain instructions were given by the court to which plaintiff then and there excepted, and a verdict was found by the jury for defendant; that on the 24th day of January, 1877, within four days after the verdict was rendered, plaintiff filed his motion for a new trial, which the court, on Monday, the 5th day of February following, overruled; that on the next day he filed his motion for a rehearing, which the court overruled on Monday, the 12th of February, having erroneously taken it as submitted without argument, but afterwards granted plaintiff leave to file a brief thereon, to wit, on Saturday, the 24th of February, which brief was accordingly submitted; that by the practice and habit of said judge, Monday in every week has been established by custom for rendering his decisions; that counsel for relator used due diligence by attendance on said court up to Monday, the 12th of March, at which time said court had still delayed its decision on said motion, and to which fact he then called the attention of the court; that on Monday following, to wit, the 19th of March, counsel for plaintiff again attended said court, and, on inquiry, was, to his surprise, informed that on Tuesday, the 13th of March, the court had overruled the motion; that from the custom of the court in delivering its decisions on Monday he was led into error, having cause to believe and believing that no decision would be rendered until Monday, the 19th of March, on which day, the time allowed under the rule for filing bills of exceptions had expired; that he immediately proceeded to prepare his bill of exceptions and tendered the same to Judge Wickham on the 30th of March, and on the 31st he refused to sign the same, because not presented in time and because said bill contained “nothing but a garbled statement of the evidence,” although defendant had a full report of said evidence in his possession and well knew that he could not sustain his assertion. This is all of the petition that it is deemed material to notice. In his return to the alternative writ, Judge Wickham denies the statements in the petition in relation to his habit in announcing decisions, and alleges that the bill of exceptions did not contain a fair statement of the evidence in the cause. “That it was nothing but a garbled statement of the evidence.” The relator moves to strike out the return because he alleges that it is not the bona fide answer of Judge Wickham, but is a defense made and set up by Chester H. Krum, the defendant in the original suit; that the return is not signed by John Wickham, or verified by affidavit; that the allegation contained in said return, that the bill...