Ex parte Skaggs

19 Mo. 339 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

Skaggs applied to the Circuit Court of Clay county, for a mandamus to the clerk of the county court, requiring him to issue to Skaggs a certificate of his election as sheriff of that county. The Circuit Court refused to issue the mandamus, and Skaggs appeared before the clerk of the Circuit Court, and prayed an appeal to this court.

1. When a mandamus issues and is returned, the person obtaining the writ may require the judgment of the court upon the sufficiency of the return, or he may, under our statute, traverse the return, and thus produce an issue of fact. When the Circuit Court pronounces its judgment upon the questions of law and fact arising upon the return, and awards or refuses a peremptory mandamus, there is a judgment between parties which may be reviewed here, either upon an appeal or writ of error. But neither an appeal nor writ of error lies to the refusal of a circuit court to issue a mandamus upon the application of a petitioner. This was settled in Shrever et al. v. Livingston County, 9 Mo. Rep. 196.

The appeal of Skaggs will be dismissed,

with the concurrence of the other judges.