State v. Edwards

• Decision Date: 23 April 1891
• Citation: 16 S.W. 117,104 Mo. 125
• Parties: STATE ex rel. MISSOURI PAC. RY. CO. v. EDWARDS et al.
• Court: Missouri Supreme Court

16 S.W. 117

104 Mo. 125

STATE ex rel. MISSOURI PAC. RY. CO. v. EDWARDS et al.

Supreme Court of Missouri, Division No. 2.

April 23, 1891.

CERTIORARI — WHEN LIES — FINAL JUDGMENT.

The order of the circuit court appointing commissioners to determine the points and manner of crossings and connections of railways, and to assess the damages, is interlocutory, and cannot be reviewed by certiorari, which only lies in case of a final order or judgment to determine the jurisdiction of the lower court.

Certiorari.

H. S. Priest, for relator. Harwick Hough and John H. Overall, for respondents.

MACFARLANE, J.

The St. Louis Merchants' Bridge Terminal Company commenced a proceeding against relator in the circuit court of the city of St. Louis for the purpose of condemning a right of way across relator's tracks and crossing and making intersection and connection with its railway in the city of St. Louis. The proceedings were removed to the circuit court of St. Charles county by change of venue, and that court appointed commissioners to assess the damages and determine the points and manner of such crossings, intersections, and connections, and to determine the compensation therefor. The order appointing the commissioners recites that due notice had been given relator, and that the parties could not "agree as to the points and manner of crossing, intersecting, and connecting with defendant the Missouri Pacific Railway Company's road, nor the compensation therefor." Pending the inquiry by the commissioners, and before they make report, relator makes application to this court for a writ of certiorari, directed to respondents, the judge of said circuit court and said commissioners, for the purpose of requiring them to certify to this court a copy of the proceedings in said cause, to the end that the same may be reviewed and quashed or modified. The office of a common-law writ of certiorari is to bring the record of the proceedings of an inferior court or tribunal before a superior court, to determine whether it had acted legally and within its jurisdiction. State v. Smith, 101 Mo. 174, 14 S. W. Rep. 108; Railroad Co. v. Board, 64 Mo. 294. It is in the nature of a writ of error to review the proceedings of the inferior court or tribunal, and is only allowed where no appeal or writ of error or other available mode of review is afforded. Railway Co. v. Young, 96 Mo. 41, 8 S. W. Rep. 776; Poe v. Machine Works, 24 W. Va. 517; Ennis v. Ennis, 110 Ill. 78; Hauser v. State, 33 Wis. 678; Witkowski v. Skalowski, 46 Ga. 41; Carolan v. Carolan, 47 Ark. 511, 2 S. W. Rep. 105. An appeal lies from a final judgment of the circuit court in a condemnation proceeding. Rev. St. 1889, § 2246; St. Louis & S. F. Ry. Co. v. Evans & Howard F. B. Co., 85 Mo. 307; St. Joseph T. R. Co. v. Hannibal & St. J. R. Co., 94 Mo. 540, 6 S. W. Rep. 691. The statute (sections 2543, 2736) gives the circuit court jurisdiction of the subject-matter of the proceeding, and...