State v. Ayers
| Decision Date | 05 February 1906 |
| Citation | 91 S.W. 398,116 Mo. App. 90 |
| Court | Missouri Court of Appeals |
| Parties | STATE ex rel. FAIRBANKS, MORSE & CO. v. AYERS, Justice of the Peace. |
Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.
Certiorari by the state, on relation of Fairbanks, Morse & Co., against M. A. Ayers, justice of the peace. From an order denying a motion to quash the writ, respondent appeals. Reversed.
Bente & Wilson and W. D. Steele, for appellant. Sangree & Bohling, for respondent.
On the 23d day of April, 1904, one George Withers began suit in Sedalia township, Pettis county, before M. A. Ayers, justice of the peace, against the relator, Fairbanks, Morse & Co., a corporation organized under the laws of the state of Illinois with a branch office in St. Louis, Mo. The summons was served by the constable of said township by reading the same to one Charles Easton, agent of said corporation, on the 14th day of June, 1904, in Sedalia township. On June 24, 1904, judgment was rendered in favor of the plaintiff for $191.50. On July 12, 1904, during the session of the circuit court for the county, the relator applied for, and was granted, a writ of certiorari, which was served upon the respondent on the same day. In due time respondent moved to quash the writ on the following grounds among others, viz., that the same was improperly issued, and that the relator had an adequate remedy by appeal. The motion to quash was overruled, and respondent appealed.
It is insisted, and properly, that the writ of certiorari is not a writ of right, and is only to be issued where there is no other adequate remedy. State ex rel. v. Woodson, 161 Mo. 444, 61 S. W. 252; Ward v. Board, 135 Mo. 309, 36 S. W. 648. The relator had a complete remedy by appeal. But it is contended by relator that, had it appealed, it would thereby have waived the question of jurisdiction. It was held in Rice v. Railway Co., 30 Mo. App. 110, that "the taking of an appeal by a defendant from a judgment of a justice of the peace waives all errors or imperfections in the service of process, and is equivalent to a general appearance...
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State ex rel. Henning v. Williams
... ... of Maryland, 167 Mo.App. 507; Roberts v. Amer. Natl ... Assur. Co., 201 Mo.App. 239, 212 S.W. 390. (b) ... Prohibition should not issue where there is an adequate ... remedy by appeal. State ex rel. v. Roehrig, 323 Mo ... 515, 19 S.W.2d 626; State ex rel. Fairbanks, etc., v. Ayers, ... 116 Mo.App. 90 ... ... Ellison, ... [131 S.W.2d 562] ... [345 ... Mo. 24] Prohibition to Hon. Charles B. Williams, judge of the ... Circuit Court of the City of St. Louis, Division I, to ... prevent him from exercising ... ...
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Cudahy Packing Co. v. Chicago & Northwestern Railway Co.
...did not waive the defects of jurisdiction. Meyer v. Ins. Co., 184 Mo. 481; Bente v. Typewriter Co., 116 Mo.App. 77; State ex rel. Fairbanks v. Ayers, 116 Mo.App. 90. Miller, Camack & Winger, P. E. Reeder and John Taylor for respondent. The alleged defects in the summons and return were cure......
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State ex rel. Henning v. Williams, 36437.
... ... Fid. & Deposit Co. of Maryland, 167 Mo. App. 507; Roberts v. Amer. Natl. Assur. Co., 201 Mo. App. 239, 212 S.W. 390. (b) Prohibition should not issue where there is an adequate remedy by appeal. State ex rel. v. Roehrig, 323 Mo. 515, 19 S.W. (2d) 626; State ex rel. Fairbanks, etc., v. Ayers, 116 Mo. App. 90 ... ELLISON, J ... Prohibition to Hon. Charles B. Williams, judge of the Circuit Court of the City of St. Louis, Division I, to prevent him from exercising jurisdiction over the person of the relator in the cause below mentioned. For return ... ...
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Powell v. St. Louis, I. M. & S. Ry. Co
...City Court of Appeals so ruled a similar question on the authority above cited, as will appear by reference to State ex rel. Fairbanks v. Ayers, 116 Mo. App. 90, 91 S. W. 398. This court did likewise in Handlan-Buck Mfg. Co. v. Chester P. & Ste. G. R. Co., 167 Mo. App. 683, 151 S. W. 171. T......