67 Mo. 146 | Mo. | 1877
Lead Opinion
This application for a writ of prohibition against one of the judges of the circuit court of St. Louis, is based on two grounds, one of which is, that the proceeding against Bowman should have been in the name of the State, and could not be prosecuted by private persons; and the other is, that the judge who presided at the trial of the proceeding was disqualified from sitting by reason of his having been, before his election as judge, a member of the Bar Association, whose committee were the prosecutors, and since his election to the bench, was an honorary member of the same. It is well settled that when the proceedings proposed to be arrested by .a prohibition contain such errors as can be reached by an appeal or writ of error, this extraordinary writ will not be allowed, and ' therefore the first alleged ground of defect of parties is not available. Nor would thé fact that the sentence pronounced by the court might be suffered by the party before his appeal could be heard, deprive the appellate court of jurisdiction.
The second ground for the writ is, not any want of jurisdiction on the part of the St. Louis circuit court over the subject-matter, but a personal disqualification of the judge. Waiving all questions in relation to the postponement of this challenge until the close of a protracted trial, and an application to this court after the petitioner’s consent to an entry of the judgment, nunc pro tunc, at a term succeeding the trial term, we are of opinion that the position of Judge Boyle, as an honorary member of the Bar Association, did not disqualify him from sitting in the
Concurrence Opinion
I concur in the opinion that the writ of prohibition should he denied, because the alleged error may he considered on appeal or writ of error. 1' express no opinion, nor do I conceive it necessary to the determination of the application, for tbis court to deckle whether Judge Boyle had or had not such an interest in the result of the proceeding to disbar Mr. Bowman, as to disqualify him from presiding at the trial; or whether, or not, that proceeding should have been instituted by the prosecuting attorney, or the Attorney General in the name of the State.
To deny the petitioner the writ of prohibition, because he may appeal, and determine against him the points he would rely upon in the appellate court, is not only refusing him a remedy to which he is not entitled, but prejudging the cause he may present on an appeal or writ of error to which he is entitled. It amounts to a declaration by this court to the court of appeals, that Bowman has no case on the merits while'we have virtually declined to consider the merits, by deciding that he is not entitled to a writ of prohibition, because he can have the merits considered on appeal or writ of error.
