Trainer v. Porter

• Decision Date: 31 January 1870
• Citation: 45 Mo. 336
• Parties: ADAM F. TRAINER, Presiding Justice of the Montgomery County Court, Petitioner, v. GILCHRIST PORTER, Judge of the Montgomery County Circuit Court, and THOS. J. POWELL, Respondents.
• Court: Missouri Supreme Court

45 Mo. 336

ADAM F. TRAINER, Presiding Justice of the Montgomery County Court, Petitioner,

v.GILCHRIST PORTER, Judge of the Montgomery County Circuit Court, and THOS. J. POWELL, Respondents.

Supreme Court of Missouri.

January Term, 1870.

Petition for writ of prohibition.

Dryden, Lindley & Dryden, with Sanders & Carhner, for petitioner.

I. Mandamus will not lie to compel an inferior tribunal to give a particular judgment, or to reverse a decision where it has once acted. (State ex rel. Adamson v. Lafayette County Court, 41 Mo. 224-5; ex parte Jesse Hoyt, 13 Pet., Sup. C. U. S., 289-90; Ex parte Myra Clark Whitney, 13 Pet. 407-8; Ex parte Taylor, 14 How., U. S., 12-13; Ex parte Koon, 1 Denio, 645-6; Elkins v. Athearn, 2 Denio, 192-3; The People v. The Judges of Dutchess Common Pleas, 20 Wend. 659; Chase v. Blackstone Canal Co., 2 Pick. 244.)

II. The functions of the County Court in matters pertaining to their probate jurisdiction are judicial. (Miller v. Iron County, 29 Mo. 122; Jones v. Brincker, 20 Mo. 88; State, use of, &c., v. Roland, 23 Mo. 98; West v. Clark County Court, 41 Mo. 49; Strouse v. Drennan, 41 Mo. 296-7; Wilson v. Brown's Adm'r, 21 Mo. 410; Speck v. Wohlien, 32 Mo. 130-1; Marion County v. Phillips, decided at last October term, but not yet reported; Tyler's adm'r v. Von Dembusch's adm'r, 42 Mo. 391; Roberts v. Casey, 25 Mo. 585; Bank & Harrolds v. white et al., 23 Mo. 348; Speck v. Wohlien, 22 Mo. 317; Strouse v. Drennan et al., 41 Mo. 298.)

III. Even if the duty imposed upon the County Court to approve or reject was held to be administrative and not judicial, still, as the discharge of the duty involves the exercise of discretion and judgment, mandamus would not lie to direct that discretion and judgment when once exercised, nor to revise or reverse it if unsoundly exercised. (Dunklin County v. District Court of Dunklin County, 22 Mo. 454; U. S. v. Guthrie, 17 How. 284; Moses on Mandamus, 78; Shepherd's note to Fish v. Weatherwax, 2 Johns. Cas. 217.)

IV. If the Circuit Court has no jurisdiction to proceed by mandamus, then prohibition will clearly lie to restrain it in its unlawful attempt to exercise jurisdiction. (Thomas v. Mead et al., 26 Mo. 246; State ex rel.West v. Clark County Court, 41 Mo. 41; Vitt v. Owens, 42 Mo. 512.)

V. The petition for prohibition may come as well from a stranger as from one in interest. But in this case it does not come from a stranger. (Thomas v. Mead et al., 36 Mo. 247, and authorities there referred to.)

Thos. J. C. Fagg, with E. M. Hughes, for respondent.

I. That the granting of a prohibition in any case is a matter of discretion. (7 Bac. Abr. 206, and authorities there cited; 1 Bos. & P. 115; 41 Mo. 40.)

II. A writ of prohibition will not be granted in any case where it is apparent that the subordinate tribunal has jurisdiction of the subject-matter. (7 Wend. 518; 4 Bibb, 394.)

III. It does not appear from the suggestions that upon a final hearing before that court that it will assume jurisdiction in the

premises and issue a peremptory mandamus, if it appears that the parties in interest can then bring the whole matter up in a regular way by appeal or writ of error. (Gen. Stat. 1865, p. 550; 9 Mo. 117; 38 Mo. 300; 41 Mo. 50; 42 Mo. 514.)

IV. This court will not, upon the suggestion of a mere stranger in interest, grant a writ of prohibition.

CURRIER, Judge, delivered the opinion of the court.

This is an application for a writ of prohibition forbidding the further entertainment or prosecution of the proceedings therein described.

The petition shows that one Talbott, late of said Montgomery county, died seized of a large amount of real estate, situated in that county, and that his personal assets were insufficient to pay his debts; that one Pittman was appointed by the County Court of Montgomery county to administer upon said Talbott's estate; that said Pitman, subsequent to his appointment, and in all respects in due conformity to law, advertised and sold at public vendue certain of said decedent's real estate, and that the defendant Powell became the purchaser thereof at such sale, being the highest and best bidder therefor, and that he duly complied with all the terms and conditions of said sale; that said administrator thereupon reported the sale, and all his proceedings in the premises, to said Montgomery County Court for confirmation; that the court, at its November term, 1869, took the same into consideration, and being fully advised in relation thereto, declined to approve the sale, and by its consideration and judgment affirmatively disapproved the same.

The petition then proceeds to show that the defendant, Gilchrist Porter, judge of the Circuit Court of said county, upon the application of the other defendant, setting out and showing the facts aforesaid, on the 25th of November, 1869, issued his writ of mandamus, directed to said County Court, and commanding it to approve said sale, or show cause for its failure to do so, at the then next succeeding April term of said Circuit Court; that said mandamus proceedings are still pending, and that the same greatly embarrass the progress of business in said County Court and obstruct the administration of justice therein.

The petition is demurred to, and the facts therein recited thereby admitted to be true. The question is therefore presented whether the petition, upon its face, makes a case which will justify this court in prohibiting the further prosecution of the mandamus proceedings complained of; and this raises the further inquiry whether the Circuit Court has jurisdiction of the cause pending before it--namely: the mandamus suit.

It is not questioned that the Circuit Court possesses a superintending control over the County Court, and that it may, by its process of mandamus, in proper cases, require the latter to proceed with the business before it, and act thereon. It has, however, no authority to determine for the County Court what judgment it shall render, or to require it to reverse its decisions, in matters of judicial cognizance after it has once acted. It is the settled doctrine on this subject that when the subordinate tribunal acts judicially, it must be left free to exercise its best judgment, and that the superior court has no authority to dictate to the former its judgments. (State ex rel. Adamson v. Lafayette Co., 41 Mo. 224; Elkins v....