Hall v. County Court of Audrain County, 27 Mo. 329

Hall v. County Court of Audrain County

27 Mo. 329 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The main question in this case is, whether an appeal will lie to the circuit court from an order of the county court removing the guardian of an insane person. The eighth section of the 47th chapter of the revised statues of 1855, p. 530, prescribes the power and jurisdiction of the circuit courts, and in the 4th clause of the section this general lan*331guage is employed: “ Appellate jurisdiction from tlie judgments and orders of county courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them.” We have not been referred to any provision of the statute that prohibits an appeal in a case like this; but, on the contrary, the 15th section, which defines the exclusive original jurisdiction of the county court, enumerates, among many other subjects, the power of “ appointing and displacing the guardians of orphans, minors and persons of unsound mind,” and closes with the sweeping declaration of the right “ to appeal in all cases to the circuit court, in such manner as may be provided by law.” It will be observed that the language is “ in such manner as may be provided by law,” and though the general right of appeal is given, “ the manner” is not provided in this section nor any other place that we have seen, except in relation to probate matters indicated in the eighth article concerning “ Administration.” As the manner is not provided, it would seem that neither an affidavit nor a recognizance is required, but that it should be allowed without a supersedeas, simply on the request of the party aggrieved, as was the practice in chancery cases under the old system.

The questions, what will be the operation of the appeal, and how the case is to be tried in the circuit court, are not presented by this record.

It is suggested that a mandamus will not lie, because the plaintiff had a remedy by writ of error (R. C. 1855, p. 1295), which would have accomplished every thing that an appeal could. It is generally true that a mandamus will not be granted when the party complaining has another specific remedy and can be redressed either by appeal or writ of error; (Williams & Wyan v. Judge of Cooper Court of Common Pleas, 27 Mo. 225 ;) and, if the plaintiff was now asking for a mandamus to compel the county court to vacate the order removing him, it could be replied that he had a remedy by appeal or writ of error. But there is no other mode of compelling the county court to allow an appeal; *332and though the plaintiff could hare taken the case up by appeal or writ of error, he had the right to his election.

The order setting aside the allowance of an appeal amounted to a refusal to grant it, and the mandamus was properly awarded.

The other judges concurring, the judgment will be affirmed.