State v. Buckner

• Decision Date: 04 April 1921
• Docket Number: No. 13917.,13917.
• Citation: 207 Mo. App. 48,229 S.W. 392
• Parties: STATE ex rel. L. J. MUELLER FURNACE CO. v. BUCKNER, Judge.
• Court: Missouri Court of Appeals

229 S.W. 392

207 Mo. App. 48

STATE ex rel. L. J. MUELLER FURNACE CO. v. BUCKNER, Judge.

No. 13917.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Original proceeding by the State, on the relation of the L. J. Mueller Furnace Company, for a writ to prohibit Thomas B. Buckner, Judge of Division No. 1 and of the Assignment Division of the Circuit Court of Jackson County, from interfering with relator in the prosecution of a case. Relator's motion for judgment on the pleadings overruled.

Ross B. Gilluly, Stubenrauch & Hartz, and M. Defoe Pypes, all of Kansas City, for relator.

H. S. Julian, of Kansas City, for respondent.

BLAND, Z.

The relator herein has filed in this court a petition asking that respondent, who is one of the judges of the Jackson circuit court, be prohibited from interfering with the relator herein or its attorney in the prosecution of the case of L. J. Mueller Furnace Company, a Corporation, Plaintiff, v. John F. Sayward, Trading as Interstate Heating Company, and Alexander Rieger, Defendants, now pending in said court, and praying that this court set aside an order of said judge forbidding plaintiff in said cause, the relator herein, from filing any motion to set aside the order theretofore made in said cause dismissing the same for want of prosecution and to reinstate the cause on the docket of that court. Upon the petition filed by the relator this court issued the preliminary writ. Respondent thereupon filed his return, and relator thereafter filed a motion for judgment on the pleadings. It is admitted that this motion operates in the nature of a demurrer to the return and admits the truth of every allegation thereof which is sufficiently pleaded. It is insisted by relator that respondent's return under the rule above stated is defective and raises no issue, and that under such circumstances the question to be determined by this court is whether or not the allegations of relator's petition entitle him to the relief prayed for. As we are of the opinion that the petition fails to state any facts justifying the issuance of a writ of prohibition, we accept relator's theory of the matter.

Relator in its petition for a writ of prohibition states:

That on or about April 30, 1915, it filed a petition in said cause in the circuit court of Jackson county, Mo., at Kansas City. That the basis of said suit was for labor and material furnished by plaintiff to defendants, amounting to $1,088.22, for which plaintiff prayed judgment, and for which amount it asked for a mechanic's lien on the property described in the petition. That after the issues were made up in the case two trials were had at different times, resulting in a new trial being granted in each instance. That after the granting of each of said new trials said cause was returned to the general docket, and was there on December 20, 1920, on which date it was summarily dismissed by respondent for want of prosecution. That respondent on said last-mentioned date was serving as assignment judge in the circuit court of Jackson county, Mo., at Kansas City; that on December 31, 1920, the relator, through its attorney, M. Defoe Pypes, filed a motion to set aside said order of dismissal and to reinstate said cause on the docket in said court and to assign the cause for trial. The motion alleged as grounds for setting aside said dismissal the following:

"Plaintiff states as the reason for this motion that the undersigned attorney representing plaintiff was out of the city of Kansas City and in the state of Oklahoma from December 6, 1920, and until December 24, 1920, and did not know of the recent order of this court requiring a peremptory call of cases numbered from 1 to 138,000 and that said order was not known to him or brought to his attention until after his return on December 24, 1920."

That on January 3, 1921, said motion was by the court overruled. That thereafter relator, through its attorneys, Stubenrauch & Hartz, prepared another and a second motion to set aside said order of dismissal and to reinstate said cause, and on January 8, 1921, Harvey E. Hartz, of said firm, presented said motion for filing to the clerk of the division of which respondent was judge, being the assignment division of said court. That while in the act of filing said motion respondent, without examining the same, said to said Hartz as follows:

"You can't file that motion in this court. I will not permit you to file any kind of a motion in this case"

—and, addressing the clerk, said:

"Mr. Clerk, I want you to strike that pleading which Mr. Hartz has just filed from your files"

—respondent being at the time under the impression that the clerk had filed the paper. That said Hartz thereupon left the courtroom, but returned in a few moments, whereupon respondent addressed said Hartz as follows:

"Mr. Hartz, I am not going to permit you to file any papers with the clerk in that case. Mr. Clerk you make an order striking all papers which Mr. Hartz has filed from your files. If you file anything downstairs, I will hold you in contempt of this court. If you file anything of any kind in this case, either here or downstairs (meaning the circuit clerk's office), I am going to punish you for contempt of court."

That respondent made the following order:

"51st day of November term, 1920, Saturday, January 8, 1921. Now on this day the court orders that the plaintiff be not allowed to file another motion to set aside the order heretofore made herein dismissing this cause for want of prosecution and reinstating cause on the docket, for the reason that the same has already been passed on."

That relator on January 7, 1921, in compliance with the rules of the circuit court of Jackson county, Mo., served timely notice on defendant in said cause that he would call up said last-mentioned motion for hearing in division No. 2 of said court on Friday, January 14, 1921, and that—

"* * * On account of the verbal orders,...