State v. Renick

• Decision Date: 08 May 1900
• Citation: 157 Mo. 292,57 S.W. 713
• Parties: STATE ex rel. CITY OF KANSAS CITY v. RENICK, Clerk.
• Court: Missouri Supreme Court

57 S.W. 713

157 Mo. 292

STATE ex rel. CITY OF KANSAS CITY v. RENICK, Clerk.

Supreme Court of Missouri.

May 8, 1900.

SUPREME COURT — JURISDICTION — MANDAMUS — EXECUTIONS — PARDONING POWER.

1. Under Const. art. 6, § 3, giving the supreme court power to issue remedial writs, that court has jurisdiction of a proceeding in which a writ of mandamus is asked against a

clerk of court requiring him to issue an execution on a judgment.

2. A mandamus proceeding requiring the court to pass on the validity of an act of the governor in remitting penalty for violation of ordinance cannot be said to be too trivial to occupy the attention of the court.

3. In a suit asking a writ of mandamus against a clerk of court to require him to issue an execution on a judgment, the fact that the relator has a remedy by suit on the clerk's bond will not deprive him of the remedy by writ of mandamus, where the former remedy is far more dilatory, and less adequate.

4. Where a judgment creditor asks for an execution within the period of the statute of limitations, the clerk of court is not justified in refusing it on the ground of delay.

5. A judgment is itself an order for its execution, and hence, in a mandamus proceeding to compel the issuance of an execution, it is no defense that the court rendering the judgment has not ordered an execution to issue.

6. Under Const. art. 5, § 8, giving the governor power, under certain limitations, to grant pardons for all offenses, the power extends only to offenses in violation of state laws, and the governor has no authority to remit the penalty imposed for violation of a city ordinance.

In banc. Suit by the state, on the relation of the city of Kansas City, in which it seeks a writ of mandamus against Charles V. Renick, clerk of the criminal court of Jackson county, requiring him to issue an execution on a judgment in favor of relator against one E. A. Stevens. Writ awarded.

R. B. Middlebrook, for relator. Frank Titus, for respondent.

VALLIANT, J.

This is an original suit, in which the relator, Kansas City, seeks a writ of mandamus to require the defendant, who is the clerk of the criminal court of Jackson county, to issue an execution on a judgment in favor of relator against one E. A. Stevens. It appears from the record that one Carrie Neal was convicted and sentenced in the police court of Kansas City for violating a city ordinance, and appealed to the criminal court of Jackson county, giving an appeal bond with E. A. Stevens as her surety. The cause came on for trial in the criminal court, which resulted, on September 3, 1890, in a conviction of Neal, sentence of a fine of $500, and judgment for that sum against her and her surety in favor of Kansas City. On appeal the judgment was affirmed by the Kansas City court of appeals. Kansas City v. Neal, 49 Mo. App. 72. Then Stevens brought suit in equity to vacate it, which suit was decided against him in the circuit court, and on appeal that judgment was affirmed by this court. Stevens v. City of Kansas City, 146 Mo. 460, 48 S. W. 658. Then, upon the application of Stevens, the governor of Missouri issued him a pardon, purporting to remit the judgment as to him, and relieve him of its burden. This document was presented to the criminal court of Jackson county on January 19, 1899, and thereupon that court entered an order reciting the alleged pardon, and declaring the judgment for the reason to be of no further force against Stevens. On December 23, 1899, the plaintiff in the judgment, relator here, applied to the clerk of that court, the defendant here, to issue execution, which he refused, and thereupon the relator instituted this suit to compel him to do so.

Defendant, in his return, pleads to the jurisdiction of this court, involving the provisions of section 12, art. 6, Const. This suit requires a construction of the provisions of section 8, art. 5, Const., in relation to the pardoning power of the governor, and therefore on that ground this court has jurisdiction of the cause. But, independent of that question, this court has jurisdiction. The power to issue original remedial writs, as they were known at common law, is conferred on this court by section 3, art. 6, and is entirely independent of the provisions of section 12 of the same article.

It is said in the return that this suit is not of sufficient importance to justify the attention of this court....