Chicago, Rock Island & Pacific R. R. v. Franks, 55 Mo. 325

Chicago, Rock Island & Pacific R. R. v. Franks

55 Mo. 325 | Mo. | 1874

Adams, J.,

delivered the opinion of the court.

This was a proceeding by mandamus, to compel the defendant, an acting justice of the peace, to grant an appeal in a certain, case in which the plaintiff was defendant, and one Benjamin C. Mapes was plaintiff and had obtained a judgment against the plaintiff. The defendant, acting as justice of the peace refused to grant the appeal, upon the alleged ground that the plaintiff had not complied with the provisions of the statute in regard to the appeal bond, etc. The only *327question presented by this record is whether mandamus will, under any circumstances, lie to compel a justice of the peace to grant an appeal. In granting appeals, a justice of the peace acts in a judicial and not a ministerial capacity. He must, as a judicial officer, decide whether the statutory steps have been complied with to authorize the appeal. The appellant, or some one for him, is required to make a proper affidavit for the appeal, and also a proper recognizance with sufficient sureties must be given, and the justice must decide whether the affidavit and recognizance are sufficient. In Jordan vs. Harson, (49 N.H., 199; 6 Am. Rep., 508,) the Supreme Court of New Hampshire expressly decided that a justice of the peace, in diseharginghis duties, .must determine “whether the right of appeal exists, whether it is demanded in due time, and whether the security offered is in form and substance sufficient ; ” and these acts are judicial in their nature. In Wortheimer vs. Howard, 30 Mo., 420, it was' held by this court that the acts of a justice of the peace, from the beginning to the end of a suit, including the issuing of an execution, are judicial and not ministerial.

It is well settled that a mandamus will not lie to control a judicial officer or court in their decisions. But this court in State of Missouri, Wheeler vs. McAuliffe, 48 Mo., 112, expressly held, that mandamus does not lie to compel a justice of the peace to grant an appeal. The statute (Wagn. Stat., 849, § 10) provides the remedy to be pursued, when the justice fails to allow an appeal. This remedy is by rule and attachment, to be issued by the Circuit or other court having jurisdiction, to compel the justice to allow the appeal, and mandamus cannot be resorted to.

Judgment reversed;

all the judges concur.