State v. Eggers

• Citation: 152 Mo. 485,54 S.W. 498
• Parties: STATE ex rel. McCAFFERY v. EGGERS et al.
• Decision Date: 05 December 1899
• Court: United States State Supreme Court of Missouri

54 S.W. 498

152 Mo. 485

STATE ex rel. McCAFFERY v. EGGERS et al.

Supreme Court of Missouri.

December 5, 1899.

CIRCUIT COURT JUDGE — POWERS IN VACATION.

Rev. St. 1889, p. 2147, § 10 et seq., creates the circuit court, and provides for general and special terms, and for the distribution of cases among the divisions in special term, and the transfer of cases from one division to another. Section 16 provides that each judge in vacation "shall have the same power that he might have if he were the sole judge of said court." Held, that each judge in vacation possesses the entire power of the court, and not merely of a judge of a division of the circuit.

Petition for writ of prohibition by the state, on the relation of James McCaffery and others, against one Eggers, as circuit attorney of the city of St. Louis, and others. Writ awarded.

Edward C. Crow, Atty. Gen., Sam B. Jeffries, and Wm. J. Stone, for plaintiffs. Geo. D. Reynolds, Noble & Shields, Morton Jourdan, and Theo. C. Eggers, for defendants.

VALLIANT, J.

This case is in all respects like that of State v. Aloe (just decided) 54 S. W. 494, except that in this case the suit in the circuit court was instituted by the circuit attorney of the city of St. Louis, instead of citizens and taxpayers, and that it was assigned to division No. 4 of the circuit court of the city of St. Louis, of which division Judge Fisher was the judge, but in his absence from the city, and in the vacation of the court, Judge Withrow, one of the judges of the circuit court of the city of St. Louis, in chambers, issued the temporary injunction complained of. Upon reading the opinion in the Aloe Case, it will be seen that the question of jurisdiction upon which the case turns is not affected by the personnel of the plaintiffs. We there hold that a court of chancery has no jurisdiction of that subject, and the fact that the circuit attorney was the plaintiff in this case does not put it in any more favorable attitude as to the question of jurisdiction than was the other case. But if it were a case of which the circuit court of the city of St. Louis had jurisdiction in equity, and if the judge of division No. 4 could lawfully have made the order, then either one of the judges of that court in vacation could have made the order. The statute under which that court was created and organized provides that it shall hold general terms and special terms. Section 10 of the act (Rev. St. 1889, p. 2147) defines: "A general term is when the court sits as a court in bank." And section 14: "A special term is when only one judge presides, and is for the trial of causes and for the transaction of all other business not specified in the next preceding section, and each judge at special term, with that exception, shall have and exercise all the powers and functions which he might have and exercise if he were the sole judge of the court." The statute requires the court in general term to make rules for the distribution of the cases among the divisions in special term, and the transfer of cases from one division to another. When a case is regularly assigned to a particular division, that division, for the purposes of ...