State v. Gates

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBrace
Citation143 Mo. 63,44 S.W. 739
Decision Date23 February 1898
PartiesSTATE ex rel. PATTON et al. v. GATES, Circuit Judge.
44 S.W. 739
143 Mo. 63
STATE ex rel. PATTON et al.
v.
GATES, Circuit Judge.
Supreme Court of Missouri, Division No. 1.
February 23, 1898.

APPEALS — JURISDICTION — EFFECT OF ORDER ALLOWING APPEAL — RECOGNIZANCE — STAY OF EXECUTION.

Under Rev. St. 1889, § 2246, as amended by Acts 1891, p. 70, and Acts 1895, p. 91, authorizing an appeal from any order granting a new trial in any civil cause; and section 2249, declaring that the recognizance therein provided for shall have the effect to stay execution pending the appeal, — the order granting such appeal suspended all further exercise of judicial functions in such cause by the court below, and transferred the jurisdiction thereof to the appellate court, until the determination of such appeal, though no such recognizance was given; and therefore a motion for a trial of such cause, notwithstanding such appeal, was properly overruled.

Petition in the name of the state, at the relation and to the use of Verne Patton and others, by Frank S. Patton, their next friend, for a writ of mandamus to Edward P. Gates, as judge of division No. 3 of the circuit court of Jackson county, requiring him to try a certain cause notwithstanding a pending appeal therein. Writ denied.

[44 S.W. 740]

Botsford, Deatherage & Young, J. M. Cleary, and Brown, Hadley & Swift, for relators. Lathrop, Morrow, Fox & Moore, for respondent.

BRACE, P. J.


On the 26th of December, 1895, the relators brought an action in the circuit court of Jackson county, at Kansas City, against the Grand Avenue Hotel Company, to recover damages for the death of their father, Fred C. Patton, who was killed on the 27th of December, 1894, while in the service of said company, operating its boiler and furnace, by the explosion thereof. The cause coming on for trial at the April term, 1896, of said court, before division No. 3 thereof, after hearing all the evidence the court instructed the jury to return a verdict for the defendant company, which was accordingly done. Thereupon the plaintiffs in due time filed their motion for a new trial, which, coming on to be heard at the October term, 1896, was sustained, on the ground that the court erred in instructing the jury to return a verdict for said defendant company. Thereupon the hotel company, in due form, took an appeal to this court from said order of the circuit court granting a new trial. Afterwards, at the April term, 1897, of said circuit court, the plaintiffs (relators herein) applied to the respondent, as judge of said court, presiding in division No. 3, by motion, for a trial of said cause notwithstanding the appeal, which motion was then and there overruled and refused. Afterwards application by petition filed on the 26th of June, 1897, was made to this court by relators for a writ of mandamus requiring the respondent to proceed with the trial of said cause notwithstanding said appeal, on the ground that, no appeal bond having been given on said appeal, such proceeding was not thereby stayed. To the petition respondent appeared, waived issue of alternative writ, and made return setting up the facts aforesaid, and admitting that no bond was given on said appeal, as alleged in the petition. Thereupon the relators filed two motions: First, to strike out a part of the return; and, second, for a peremptory writ upon the facts stated in the petition.

1. That part of the return to which the motion to strike out is directed consists simply of the remarks made by the judge presiding in division No. 3, in explanation and support of his action in sustaining the motion for a new trial; and, being impertinent to the real issue tendered by the return, that motion will be...

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10 practice notes
  • Niedringhaus v. Investment Co., No. 29624.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1931
    ...thereafter to entertain the motion of the stranger to the record. State ex rel. v. Hall, 12 S.W. (2d) 91; State ex rel. v. Gates, 143 Mo. 63; State ex rel. v. Sale, 153 Mo. App. 273. (b) The order setting aside the judgment entered November 14, 1928, made on December 1, 1928, was made witho......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...purported service and return thereon by the sheriff are void and conferred no jurisdiction over relators. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Donnell v. Wright, 199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S......
  • State ex rel. Ford v. Hogan, No. 29851.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...vestige of jurisdiction it theretofore had over said case. State ex rel. Bank v. Hall, 12 S.W. (2d) 91; State ex rel. Patton v. Gates, 143 Mo. 63; Reed v. Bright, 233 Mo. 399; Finley v. Railway Co., 238 Mo. 6; In re Grading Bledsoe Hill, 222 Mo. 604; Burgess v. O'Donohue, 90 Mo. 299. (4) Ju......
  • Herrick Motor Co. v. Fischer Oldsmobile Co., No. 8666
    • United States
    • Court of Appeal of Missouri (US)
    • October 25, 1967
    ...S.W.2d 636, 637(1)) or of authority to exercise functions 'of a merely ministerial or executive character' (State ex rel. Patton v. Gates, 143 Mo. 63, 68, 44 S.W. 739, 741) prior to filing of the transcript on appeal (e.g., approving a supersedeas bond (Rule 82.09(a)), permitting the filing......
  • Request a trial to view additional results
10 cases
  • Niedringhaus v. Investment Co., No. 29624.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1931
    ...thereafter to entertain the motion of the stranger to the record. State ex rel. v. Hall, 12 S.W. (2d) 91; State ex rel. v. Gates, 143 Mo. 63; State ex rel. v. Sale, 153 Mo. App. 273. (b) The order setting aside the judgment entered November 14, 1928, made on December 1, 1928, was made witho......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...purported service and return thereon by the sheriff are void and conferred no jurisdiction over relators. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Donnell v. Wright, 199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S......
  • State ex rel. Ford v. Hogan, No. 29851.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...vestige of jurisdiction it theretofore had over said case. State ex rel. Bank v. Hall, 12 S.W. (2d) 91; State ex rel. Patton v. Gates, 143 Mo. 63; Reed v. Bright, 233 Mo. 399; Finley v. Railway Co., 238 Mo. 6; In re Grading Bledsoe Hill, 222 Mo. 604; Burgess v. O'Donohue, 90 Mo. 299. (4) Ju......
  • Herrick Motor Co. v. Fischer Oldsmobile Co., No. 8666
    • United States
    • Court of Appeal of Missouri (US)
    • October 25, 1967
    ...S.W.2d 636, 637(1)) or of authority to exercise functions 'of a merely ministerial or executive character' (State ex rel. Patton v. Gates, 143 Mo. 63, 68, 44 S.W. 739, 741) prior to filing of the transcript on appeal (e.g., approving a supersedeas bond (Rule 82.09(a)), permitting the filing......
  • Request a trial to view additional results

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