State v. Thurman

• Decision Date: 17 December 1910
• Citation: 232 Mo. 130,132 S.W. 1157
• Parties: STATE ex rel. SPRING RIVER ELECTRIC POWER CO. v. THURMAN, Judge.
• Court: Missouri Supreme Court

132 S.W. 1157

232 Mo. 130

STATE ex rel. SPRING RIVER ELECTRIC POWER CO. v. THURMAN, Judge.

Supreme Court of Missouri.

December 17, 1910.

Rehearing Denied December 31, 1910.

1. CONTINUANCE (§ 49) — CONDITIONS ON GRANTING—PAYMENT OF COSTS.

The circuit court has power to impose, as a condition to the granting of a continuance of a cause which has stood on the docket for about five years and has been repeatedly continued, that the plaintiff pay the accrued costs at least 10 days before the beginning of the next term, and in default of such payment that the cause stand as dismissed.

2. CONTINUANCE (§ 49) — CONDITIONS ON GRANTING—PAYMENT OF COSTS.

Plaintiff by accepting a continuance thereby accepted the condition imposed by the order for continuance, that costs be paid at least 10 days before the beginning of the next term of court or that the cause stand as dismissed.

3. APPEAL AND ERROR (§ 105) — DECISIONS REVIEWABLE—DISMISSAL OF CAUSE.

An appeal will be from an order dismissing a cause.

4. MANDAMUS (§ 4)—NATURE AND GROUNDS —REMEDY BY APPEAL OR ERROR—EFFECT.

The existence of a remedy by appeal or writ of error on the dismissal of a cause precludes the remedy by mandamus to the judge to reinstate the cause.

In Banc. Original proceeding in mandamus by the State on the relation of the Spring River Electric Power Company against Berry G. Thurman, Judge of the Twenty-Sixth judicial circuit. Peremptory writ denied.

This is an original proceeding by mandamus brought in this court against the respondent, as judge of the circuit court of Barton county to compel the reinstatement of the case of the Spring River Electric Power Company against H. J. Mink and Albert Rich, which was dismissed for failure to comply with an order of the court to pay certain costs mentioned therein. An alternative writ was issued, and in due course respondent made and filed his return thereto.

The petition for the writ is as follows (formal parts omitted):

"Comes now the above-named relator, and respectfully represents and shows to this honorable court:

"That the Spring River Electric Power Company is now, and at all of the dates and times hereinafter mentioned was, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri.

"That the respondent, the Honorable B. G. Thurman, is a duly elected, qualified, and acting judge of the circuit court within and for Barton county, state of Missouri.

"That on or about the 10th day of January, 1910, and for a long time prior thereto, there was then and there pending in the honorable the circuit court of Barton county, Mo., a certain action entitled: "The Spring River Electric Power Company, Plaintiff, v. Lavina Mink, as Administratrix of the Estate of H. J. Mink, Deceased, and Albert Rich, Defendants,' numbered 2,660, which said action was for actual and exemplary damages, $7,500 actual, and $5,000 exemplary, damages, respectively, instituted by said relator, the Spring River Electric Power Company, as plaintiff against said H. J. Mink and Albert Rich, as defendants, in the circuit court of Jasper county, Mo., on or about the 31st day of May, 1905, thereafter transferred to the circuit court of Barton county, Mo., on a change of venue, and during the pendency of such suit the said H. J. Mink having died, his duly appointed, qualified, and acting administratrix was thereupon made a party defendant to said cause, and both of said defendants, Lavina Mink, as administratrix of the estate of said H. J. Mink, deceased, and said Albert Rich, filed their separate answers in said cause, and the plaintiff having filed its reply thereto, and said cause stood properly for trial at the January, 1910, term of said circuit court of Barton county, Mo.

"That on said 10th day of January, 1910, same being on the first day of the January, 1910, term of said circuit court of Barton county, Mo., the said relator, the Spring River Electric Power Company, as plaintiff in said cause, caused to be filed in the office of the clerk of the circuit court of said Barton county, Mo., an application for a continuance, by reason of the serious illness of one James J. Hitt, Esq., a duly licensed and practicing attorney of Kansas City, Mo., and attorney of record for said plaintiff, which said application for a continuance was presented to said circuit court by one J. B. McGilvray, Esq., a duly licensed and practicing attorney of Lamar, Mo., at request of H. H. McCluer, Esq., one of the attorneys for plaintiff; that said application for a continuance was taken up, considered, and sustained by the respondent, the judge of said circuit court of Barton county, on said 10th day of January, 1910, by the following order on the judge's docket, to wit:

"`Order of Court. Plaintiff filed application for a continuance. Cause continued on application of the plaintiff and at plaintiff's costs, and ordered that if the costs of the term are not paid ten days before the next term of this court, the same to stand dismissed for want of prosecution.'

"That thereupon, and by virtue of said aforesaid order of court, the clerk of said court entered the following order of record, in Circuit Court Records No. 5, of Barton county, at pages 613 and 614, to wit:

"`January 10, 1910. Now comes on for final hearing and determination the application of plaintiff for continuance heretofore filed herein, and the same being seen, heard and duly considered by the court, is by the court sustained and the court (cause) is hereby continued, at plaintiff's cost, and all costs of this term of court is hereby taxed against plaintiff, and it is further ordered by the court in sustaining said application for continuance that the plaintiff pay all costs of this term of court herein, taxes v. plaintiff on or before ten days before the first day of next term of this court; and if the said plaintiff does not pay such costs on or before ten days before the next term of this court, then this cause is to stand dismissed for want of prosecution.'

"That thereafter, on or about the 4th day of April, 1910, the clerk of said circuit court of Barton county attempted to dismiss said cause, as per the previous order of the court, made on said 10th day of January, 1910.

"That neither of the officers, agents, nor attorneys of the Spring River Electric Power Company had any knowledge or notice of such conditional order having been attached to said order granting a continuance, until the 9th day of April, 1910, when they were so informed, by telegram, from J. D. Harris, Esq., one of the attorneys for said defendants, and that the said J. B. McGilvray had no knowledge of such conditional order having been rendered by the court until the 10th day of April, 1910.

"That during all of said dates and times, from the 7th day of May, 1906, and up to the time of the filing of this petition, there was on file in the office of the clerk of the circuit court of said Barton county, a good and sufficient bond for costs in said cause, and that no fee bill issued against the plaintiff and the sureties on such cost bond on such term bill.

"That thereafter, on the 11th day of April, 1910, same being on the first day of the regular April, 1910, term of said circuit court, the said relator as plaintiff caused to be filed in the office of the clerk of the circuit court of said Barton county, a motion to set aside such pretended order of dismissal, and reinstate said cause and set the same down for trial at some subsequent day of said April term (such trial having been previously set down for trial on Monday, the 11th day of April, 1910), for the following reasons, to wit:

"First. Because the court was wholly without jurisdiction or power to attach to such order of continuance, at cost of the plaintiff, a proviso that unless the cost of such continuance be paid on or before ten days before the next term of this court, then this action should stand dismissed for want of prosecution.

"Second. Because during all of said dates and times there was a good and sufficient bond for costs filed in said cause, and no fee bill was issued by the clerk of said court against the plaintiff and the sureties on such bond, on account of such continuance.

"Third. That the pretended act or acts of the clerk of this court, on or about the 4th day of April, 1910, in attempting to dismiss said cause, was without authority of law, null and void, and an attempt by a ministerial officer to exercise functions of a judicial officer.

"Fourth. Because the plaintiff, nor any officer, agent, or attorney of such corporation, had any knowledge or notice of such conditional order having been made, until the 9th day of April, 1910, and after such pretended dismissal.

"Fifth. Because there could be no ground for the dismissal of such cause for want of prosecution, during vacation.

"Sixth. Because no dismissal of said cause for failure to pay the costs of such continuance could be made in vacation of this (circuit) court.

"Which said motion was accompanied by the affidavits of Frank O. Chesney, J. B. McGilvray and Frans E. Lindquist, attached thereto and made a part of such motion, a copy of which said motion and affidavits are hereunto annexed, marked Exhibit A, and made a part of this petition.

"That thereafter on the first day of the April term, 1910, of said circuit court, to wit, on the 11th day of April, 1910, said motion came regularly on for hearing and determination before said respondent, as judge of said court, supported by such affidavits aforesaid, and without any affidavit or evidence, or argument in opposition to such motion by the attorneys for the defendants, the said respondent willfully, unlawfully, and arbitrarily overruled such motion and refused to permit the plaintiff to further prosecute such civil action for damages.

"That no appeal lies from such order, and no writ of error can legally issue by reason of such wrongful and arbitrary orders, and that the...