State v. Calvird

• Decision Date: 29 January 1917
• Docket Number: No. 12337.,12337.
• Citation: 195 Mo. App. 354,191 S.W. 1079
• Parties: STATE ex rel. KEIRSEY v. CALVIRD, Circuit Judge.
• Court: Missouri Court of Appeals

191 S.W. 1079

195 Mo. App. 354

STATE ex rel. KEIRSEY v. CALVIRD, Circuit Judge.

No. 12337.

Kansas City Court of Appeals. Missouri.

January 29, 1917.

Petition for prohibition by the State, on the relation of L. S. Keirsey, against Charles A. Calvird, as Judge of the Twenty-Ninth Judicial Circuit. Writ of prohibition denied.

Smith & Chastain, of Butler, for relator. Silvers & Dawson, of Butler, for respondent.

BLAND, J.

The relator herein filed in this court a petition asking that respondent, who is judge of the Bates circuit court, be prohibited from trying the cause of L. S. Keirsey, Plaintiff, v. T. H. Lynch, Defendant, now pending in said court. The petition states: That on January 6, 1916, the relator instituted a suit before one J. W. Moles, justice of the peace of Shawnee township, Bates county, Mo., against one T. H. Lynch for debt, and that such suit on January 17, 1916, resulted in a judgment in favor of the relator. On January 26, 1916, said defendant, T. H. Lynch, filed an affidavit of appeal, and at the same time gave a recognizance in due form. Thereupon the justice of the peace granted an appeal to the circuit court of Bates county, Mo., and transcript of the record of said justice in said cause was filed in the office of the circuit clerk of said circuit court. That, plaintiff being a nonresident of the state, the defendant filed the notice of appeal with the justice of the peace, as provided by law. That at the second term of the circuit court, after the taking of said appeal, plaintiff appeared specially for the purpose of the motion only and filed in said court his motion to have the judgment rendered by said justice affirmed on the ground that the notice of appeal did not comply with the statutes, and that therefore it was not a legal notice of appeal. That thereafter respondent, as judge of said circuit court, overruled said motion of relator to affirm the judgment of the justice and set the cause down for trial, and threatens to, and, unless this court prohibits him, will, assume jurisdiction and power to hear, try, and determine said appeal de novo.

Relator further states that the so-called "notice of appeal" does not comply with the statute in reference to notices of appeal on account of defects that are vital, and for that reason the respondent has no jurisdiction to try the cause, but that, nevertheless, he is threatening to try it; that for said reasons the relator is entitled to the writ sued for, as he says he has no other adequate remedy at law or in equity.

Respondent, subsequent to the filing of said petition, appeared and waived the issuance of any writ and filed a demurrer to said petition. In said demurrer he sets up that the petition does not state sufficient facts to authorize the issuance of a...