State v. Lamb
| Decision Date | 08 July 1921 |
| Docket Number | No. 22584.,22584. |
| Citation | 232 S.W. 983 |
| Parties | STATE ex rel. CARSON et al. v. LAMB, Judge. |
| Court | Missouri Supreme Court |
Jno. D. Taylor, of Keytesville, for respondent.
This is an original proceeding in mandamus against respondent as judge of the circuit court of Chariton county.
The petition filed by relators, a copy of which was attached to and made a part of the alternative writ, stated that on and prior to October 28, 1917, relators were parties to a certain suit in partition pending in said circuit court, in which respondent presided as judge, and that John S. Lane interpleaded in said cause prior to said date, and that judgment was rendered in said cause in favor of said Lane by respondent; that on said October 28, 1919, relators caused a writ of error to issue from this court directed to the circuit court of Chariton county, and that on final hearing and on June 2, 1920, this court reversed said cause and remanded the same to the circuit court, with directions to enter order of distribution in accordance with the opinion of this court (see Carson v. Hecke, No. 20826, as reported in 222 S. W. 850); that on June 18, 1920, this court issued its mandate; that said mandate was filed in said circuit court June 23, 1920; that relators filed their motion in said circuit court on November 13, 1920, for distribution in accordance with said mandate; that on November 22, 1920, respondent refused and declined to make distribution in accordance therewith. Relators therefore asked for the issuance by this court of its writ of mandamus to compel respondent to make such distribution.
Our alternative writ of mandamus, commanding respondent to make such distribution in accordance with its mandate or show cause on or before January 31, 1921, why he should not do so, was issued on December 31, 1920.
On January 19, 1921, respondent filed his return to our alternative writ, alleging that after the order of partition and sale had been made in said partition suit and the land affected thereby had been sold under such order John S. Lane made application to the circuit court to be made a party to said suit, setting out that he owned a certain interest in said lands and the proceeds of the sale thereof; that thereafter, on October 17, 1917, the interests of the parties to said suit, including said John S. Lane, were ascertained, determined, and set out and the sheriff was ordered to distribute the proceeds of the sale of said lands accordingly; that motions for new trial and in arrest of judgment were filed and overruled, and application and affidavit for appeal were filed, and that such application for appeal was denied because the same was not in compliance with the requirements of law; that on October 27, 1917, said circuit court of Chariton county adjourned to court in course; that on October 29, 1917, and after final adjournment of said circuit court, and with the order and judgment of said circuit court unappealed from and unstayed by any bond, said sheriff paid to said John S. Lane the sum of $3,156 out of the proceeds of said sale; that the order of this court granting its writ of error was served and filed of record in the Chariton county circuit court on October 30, 1920; that no notice of the application for said writ of error was served on respondent or said sheriff, nor was any bond filed to stay the judgment of said circuit court as provided for by sections 2611, 2042; and 2043, R. S. 1909; that the mandate of this court (Carson v. Hecke, No. 20826) reached the circuit court of Chariton county June 26, 1920; that thereafter relators filed their motion for an order of distribution in accordance with said mandate—that is, to order distribution among the other parties to said suit of $3,156 theretofore paid to John S. Lane, and to disallow any part thereof to said John S. Lane; that it is wholly impossible for respondent as such judge to make and enter an enforceable order to that effect, because the sheriff of Chariton county paid said sum of $3,156 to said John S. Lane on October 29, 1917, acting under the order of said circuit court on October 17, 1917; that relators are not entitled to have a peremptory writ of mandamus against respondent,...
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