State v. Rassieur, No. 19372.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWoodson
Citation190 S.W. 915
Decision Date21 December 1916
Docket NumberNo. 19372.
PartiesSTATE ex rel. POWERS v. RASSIEUR, Circuit Judge.
190 S.W. 915
STATE ex rel. POWERS
v.
RASSIEUR, Circuit Judge.
No. 19372.
Supreme Court of Missouri. In Banc.
December 21, 1916.

Mandamus by the State, on the relation of Anthony W. Powers, against Leo S. Rassieur, Circuit Judge. Permanent writ ordered to issue as prayed.

The only question presented for determination in this case is whether a writ of mandamus should be awarded requiring the respondent, Leo S. Rassieur, as circuit judge, to reinstate upon his docket a motion for new trial filed by one Anthony W. Powers in an election contest brought against him by Charles H. Turpin. After judgment had been rendered against him in said circuit court of the city of St. Louis and the timely filing of a motion for new trial, the said Anthony W. Powers presented an application to this honorable court for a writ of prohibition directed against said circuit judge and said Charles H. Turpin. Upon said application a writ was awarded.

In due time respondent made return to the writ, and thereafter our writ was quashed. State ex rel. Powers v. Rassieur, Judge, et al., 184 S. W. 116. After the issuance and service of our writ, Judge Rassieur proceeded with the case of Powers v. Turpin, and overruled the motion for a new trial, which was then pending in his division of the circuit court. Thereupon the relator in this case appealed to this court for a writ of mandamus against respondent, asking that the order of the circuit court overruling said motion for a new trial be set aside and for naught held, and that said motion be reinstated, and the court be directed to pass upon said motion as prescribed for by law. The ground assigned therefor was that at the time the motion for a new trial was overruled the case of State ex rel. Powers v. Rassieur et al., supra, was pending in this court, and that the jurisdiction of the circuit court over the same was completely suspended, and for that reason it had no power or authority to pass upon said motion.

In due time this court awarded a temporary writ of mandamus as prayed for, and in due time respondent made a return, the material parts of which, in substance, states that our former writ only prohibited the circuit court from executing the judgment of ouster rendered against the relator in the case of Turpin v. Powers, supra, and that the overruling of said motion was not in violation of the mandates of the previous writ.

Upon the incoming of this return, counsel for relator moved for judgment on the pleadings, which, of course, confesses the truthfulness of all matters well pleaded in the respondent's return, as well as those in the petition for the writ, not denied thereby.

[190 S.W. 916]

Thomas A. Dwyer, Holland, Rutledge & Lashly, and Ernest A. Green, all of St. Louis, for relator. George B. Webster, of St. Louis, for respondent.

WOODSON, J. (after stating the facts as above).


I. As previously stated, the only question presented by this record for adjudication is: Did the circuit court have jurisdiction to pass upon the motion for a new trial in the case of Turpin v. Powers, supra? This question must, upon principle and authority, be answered in the negative. The precise question was presented to this court in the case of State ex rel. Knisely v. Board of Trustees et al., 186 S. W. 680. In that case, 186 S. W. on page 681, this court said:

"For the purpose of this case we shall assume that the motion to vacate the judgment is still pending in the court of the respondent herein, and that, unless prohibited, it will, as the return discloses, proceed to hear and determine the same. This we must necessarily assume, because, under our law and practice, after our preliminary writ is granted, the court to which it is directed has absolutely no authority or jurisdiction to in any manner proceed further. It cannot entertain motions to dismiss the proceedings, or take any other action in the premises. This should be better understood by the nisi courts of this state, as our records disclose that in some cases after the issuance of our preliminary rule the court nisi has proceeded to act to some extent. We take this occasion to say that after the issuance of our preliminary rule, or even after notice is served of the intended application for our preliminary rule, the trial court should proceed no further, but await the action of this court."

The principle upon which that ruling was predicated is the familiar one that two courts at the same time cannot have jurisdiction over the same cause for procedure or trial. The only exception to the rule is apparent rather than real, and that is where the inferior court may correct its record on motion for a nunc pro tunc order, etc., after a cause has been appealed or otherwise properly removed to a superior court. But this case does not fall within that exception.

The overruling of the motion is the case of Turpin in the case of Turpin v. Powers, supra, was not a mere correction of a record, but was a step taken in the regular trial of the cause. The jurisdiction of the circuit court at the time that order was made was completely suspended by reason of the fact that the cause was removed to this court by means of the writ of prohibition before mentioned, and consequently that court never reacquired jurisdiction thereof until after said writ had been quashed by this court.

The present case shows the wisdom of that rule in that after the motion for a new trial had been overruled, and before the writ of prohibition had been quashed, the time for the defendant to take his appeal in the case of Turpin v. Powers, supra, had expired. In other words, the dual jurisdiction mentioned would, if tolerated, have deprived the relator here of his right to appeal in the election contest case before mentioned. For the orderly and proper administration of justice the law, in the absence of an express statutory enactment or a constitutional provision, will not tolerate an interference of one court with the jurisdiction of another over the same cause of action at the same time. State ex rel. v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468, 14 Ann. Cas. 198. This is the same general principle which excludes the state courts from interfering with the jurisdiction of the United States courts, and vice versa. State ex rel. v. Reynolds, supra.

For the reasons stated, a permanent writ of mandamus is ordered to issue as prayed.

REVELLE, J., concurs. GRAVES, C. J., concurs in separate opinion, in which BLAIR, J., concurs. BOND, WALKER, and FARIS, JJ., dissent.

GRAVES, C. J. (concurring).

In the case of Turpin v. Powers, out of which the instant case of mandamus and the case of State ex rel. Powers v. Rassieur, 184 S. W. 116 (a case in prohibition), grew, the said Powers challenged the jurisdiction of the circuit court of St. Louis by proper pleadings. Notwithstanding this pleading, the said court continued its jurisdiction to a judgment of ouster as against Powers, and a threatened execution of that judgment pending a motion for new trial. This challenge was to the effect that said court had no legal authority to try, hear, and determine a contest for the office of constable; that the only statute purporting to give such court jurisdiction was unconstitutional and void. I dissented in State ex rel. Powers v. Rassieur, 184 S. W. 116, for the reason (among others not necessary to name) that this question of absolute want of jurisdiction was a question properly in that case; in other words, that by our preliminary rule in prohibition the jurisdiction of that court in the contest case was before us for a full determination, and not merely for a determination of some particular excess of jurisdiction. In that case we issued our preliminary rule to show cause, and it is in the construction of this rule that I disagreed to the views of my Brother BOND in the opinion which he now files as a dissent here. That rule, as is usual in such cases, contained a general clause which prohibited the respondent, Rassieur, from doing anything in the Turpin-Powers Case until our determination of the proceeding in prohibition. The concluding clause of our rule was:

"And in the meantime you are commanded to take no further action in the premises until the further order of this court."

This rule was issued in vacation by Woodson, C. J., and Graves and Blair, JJ. The purpose of the rule was to stay the hands of Judge Rassieur until this court could determine the merits of the controversy involved in the prohibition proceeding in which this

190 S.W. 917

rule was entered. The word "premises," as therein used, had reference to the case of Turpin v. Powers. It was the usual blanket safety clause incorporated in all preliminary rules in prohibition. When Judge Rassieur violated the injunction of that rule, his act was a nullity, because, by our constitutional superintending power, we had withdrawn his right or jurisdiction to act. The contemplation of that rule was to stay his hands absolutely until we could determine the prohibition proceeding. The purpose was to keep all things (in that case of Turpin v. Powers) in status quo until this court had spoken, and by speaking had affirmed or denied the right of Judge Rasssieur to further act. For these additional reasons, as well as for the reasons stated in the opinion of WOODSON, J., I fully concur in the said opinion of WOODSON, J.

II. There is still a further reason for my concurrence, and this, too, grows out of the language of our preliminary rule. Our preliminary rule commanded the said Rassieur on a certain day to appear in this court —

"and show cause, if any you have, why a writ of prohibition should not issue, as prayed in the petition herein, prohibiting you, the said Leo S. Rassieur, judge as aforesaid, and you, the said Charles H. Turpin, from in any manner interfering with the said relator's possession and occupancy of the office of constable of the Fourth district of the...

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6 practice notes
  • State v. Massey, No. 40964.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1949
    ...County of any jurisdiction herein. State ex rel. Pettibone v. Mulloy, 52 S.W. (2d) 402, 330 Mo. 1084; State ex rel. Powers v. Rassieur, 190 S.W. 915. (2) The scope of legitimate argument was transcended by the assistant prosecutor in the trial below to such an extent as to inflame the preju......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...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.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill v. Meek, 20 Mo 358; State ex rel. Manning v. Hughes, 351 Mo. 7......
  • U.S. Dep't of Veterans Affairs v. Boresi, No. SC 92541.
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 2013
    ...meantime, and until the further order of this court, to forbid any ‘further action in the premises.’ ” State ex rel. Powers v. Rassieur, 190 S.W. 915, 919 (Mo. banc 1916). 7. The cases cited in Ashby, FN 5, 297 S.W.3d at 84, for the proposition that the judgment on the writ petition was app......
  • State ex rel. Terry v. Holtkamp, No. 31793.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1932
    ...effect. Respondent was without power or authority to make any order while said preliminary rule was in force. State ex rel. v. Rassieur, 190 S.W. 915; State ex rel. v. Landis, 173 Mo. App. 198. (4) No remedy by appeal from the threatened judgment in respondent's court could be adequate or s......
  • Request a trial to view additional results
6 cases
  • State v. Massey, No. 40964.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1949
    ...County of any jurisdiction herein. State ex rel. Pettibone v. Mulloy, 52 S.W. (2d) 402, 330 Mo. 1084; State ex rel. Powers v. Rassieur, 190 S.W. 915. (2) The scope of legitimate argument was transcended by the assistant prosecutor in the trial below to such an extent as to inflame the preju......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...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.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill v. Meek, 20 Mo 358; State ex rel. Manning v. Hughes, 351 Mo. 7......
  • U.S. Dep't of Veterans Affairs v. Boresi, No. SC 92541.
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 2013
    ...meantime, and until the further order of this court, to forbid any ‘further action in the premises.’ ” State ex rel. Powers v. Rassieur, 190 S.W. 915, 919 (Mo. banc 1916). 7. The cases cited in Ashby, FN 5, 297 S.W.3d at 84, for the proposition that the judgment on the writ petition was app......
  • State ex rel. Terry v. Holtkamp, No. 31793.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1932
    ...effect. Respondent was without power or authority to make any order while said preliminary rule was in force. State ex rel. v. Rassieur, 190 S.W. 915; State ex rel. v. Landis, 173 Mo. App. 198. (4) No remedy by appeal from the threatened judgment in respondent's court could be adequate or s......
  • Request a trial to view additional results

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