148 Mo. App. 271 | Mo. Ct. App. | 1910
This is an application for a prohibition which originated in the circuit court. Upon filing the petition, summons was duly issued and served on defendants who appeared in due time and filed their answer. ' The issues having been thus made up, after hearing the evidence on behalf of both parties, the court denied the writ, dismissed the petition and entered judgment accordingly. From this judgment the plaintiff prosecutes the appeal. The rule formerly obtained in this State as at common law, to the effect that though an appeal was a proper remedy on behalf of the respondent when the circuit court had awarded a prohibition, none was allowable at the suit of the relator when the' writ was denied. In cases where the mover had applied to the circuit court for a writ of prohibition and his application in that behalf had been denied, it was ruled
The doctrine of this case has been extended in many of the American courts with respect to the statutory remedy of appeal. Among the jurisdictions which adhered thereto was that of Missouri, and it has heretofore been decided on the grounds stated by both this court and the Kansas City Court of Appeals that, notwithstanding our general statute allowing appeals to the party aggrieved, no appeal would lie from an order of the circuit court refusing to award a prohibition. See State ex rel. Griffith v. Bowerman, 40 Mo. App. 576; State ex rel. Smith v. Levens, 32 Mo. App. 520; see also High, Extraordinary Remedies, sec. 794; 16 Ency. PI. and Pr. 1143, 1144. But this doctrine no longer obtains with us as appears from a recent statute on the subject.
In 1895, the Legislature contributed an article consisting of nine sections of statutory law touching the matter of prohibition. The sections 4448, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456, R. S. 1899. 4448, 4449, 4450, 4451, 4452, 4453, 4454, 4455, 4456, Ann. St. 1906. Section 4450 provides that proceedings for prohibition shall be by civil action in which the moving party is plaintiff and the adverse party defendant and shall otherwise conform as nearly as practicable to the code of civil practice, except as otherwise provided in the article. This statute dispenses with the idea that
Section 4451, after authorizing applications for this writ to be made by petition to the proper court, says that the petition may be heard in the first instance summarily or on notice to the adverse party, as the court may order.
Section 4452 provides the defendant' may demur to the petition or make return to the preliminary order. When the return is made, the plaintiff may plead thereto.
Section 4453, in so far as applicable to proceedings in the circuit court, says the cause shall be heard as soon as practicable after the issues are joined and shall be triable in the same manner as other civil cases.
Section 4454 relates to the judgment the court is authorized to give in such proceedings. Among other things, it provides upon a hearing the court may render final judgment on the merits and for the costs as the facts may warrant and that such judgment is enforceable in like manner as other judgments in civil actions.
Section 4455 relates to motions for a new trial and in arrest of judgment and authorizes an appeal from the judgment contemplated in section 4454. Section 4455 is as follows:
“Any final judgment in prohibition shall be reviewable by motions for new trial and in arrest, and by appeal, as in other civil actions; but in the case of an appeal from the judgment of any circuit or common pleas court imposing a prohibition, the appeal shall not operate to discontinue or in anywise affect the force of the judgment as a stay of the proceedings in question, until such appeal be determined.”
It appears the present proceeding was instituted under these statutes. Plaintiff filed his petition for a prohibition in the circuit court in term time and the court, upon inspecting the same, entered its order of rec
In this state of the record there can be no doubt that an appeal may be prosecuted under the statute above quoted, section 4455, from the judgment even though no preliminary rule in prohibition was ever awarded. Whatever may have been the rule as to this matter, prior to the statutes above referred to, those statutes certainly contemplated a final judgment between the parties in a proceeding of this character and authorize an appeal therefrom. Indeed, where the issue is made up and tried in the circuit court, as was done in this case, section 4454, in express terms, authorizes the court to “render final judgment on the merits and for the costs as the facts may warrant . . . and such judgments may further be enforced in like manner as other judgments in civil actions.”
A prohibition is sought against the defendant Prey, a justice of the peace, and the defendant Meyer, a constable. It appears the plaintiff had been convicted under sections 2429 and 2430, Revised Statutes 1899 in the court of Frey, the justice of the peace, on a charge of having threatened to do bodily harm to one Schafer and required to give a peace bond as contemplated by those statutes. Afterwards, Prey, the justice, issued aa execution for costs against the defendant in that action,, the plaintiff here, and delivered the same to defendant Meyer, the constable. Meyer proceeded to levy upon property belonging to the present plaintiff, who was defendant in the execution, to the end of satisfying the cost bill, whereupon the defendant in the execution instituted this proceeding for a prohibition against both officers on the theory that he had perfected an appeal from the judgment against him in the justice of the peace court and the subsequent issue and levy of the execution were therefore unauthorized.
It is argued first the writ of prohibition will not go against a justice of the peace to prevent the issuance of an execution for the reason that such is a ministerial act. There can be no doubt the writ of prohibition goes only from a superior court to an inferior tribunal to the
It is therefore clear, as has been many times- decided, that a prohibition will not lie to prevent the execution of a mere ministerial act by a ministerial officer and as a general rule the writ will not go against judicial officers in performing mere ministerial duties. [State ex rel. v. Clark Co., 41 Mo. 44; Casby v. Thompson, 42 Mo. 133; Vitt v. Owens, 42 Mo. 512; Hockaday v. Newsom, 48 Mo. 196; School District v. Burris, 84 Mo. App. 654; 23 Am. and Eng. Ency. Law (2 Ed.), 206; High, Ex. Rem. (3 Ed.), sec. 782.] As a general rule a writ of prohibition is not available to the end of preventing the issuance of an execution, such being regarded as a ministerial act only. It seems this doctrine generally obtains, although it is not the law in this State, as we understand it. [23 Am. and Eng. Ency. Law (2 Ed.), 224; High, Ex. Rem. (3 Ed.), sec. 782; Atkins v. Siddons, 66 Ala. 453; Ex parte Braudlacht, 2 Hill (N. Y.) 367, 38 Am. Dec. 593.]
The defendant constable, of course, is a ministerial officer and no one can doubt that the act of levying the execution in his hands is purely ministerial in character; therefore, if the rule obtained with us, as above indicated as to the act of the justice in issuing an execution being ministerial, such would be conclusive of the whole proceeding. On any view, there are no grounds for prohibition against the constable Meyer.
But, as to the act of the justice of the peace in issuing the execution, we are concluded by a judgment of the Supreme Court squarely in point. In Wertheimer v. Howard, 30 Mo. 420, the question was made as to
The proceedings against which the rule in prohibition goes in such circumstances are usually pending in inferior courts possessed of general jurisdiction or of plenary powers in the premises. In other words, the prohibition is awarded in such circumstances against courts which have some inherent power to the end of recalling or quashing process issued on their judgments. [State ex rel. v. Hirzel, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961; State ex rel. v. Lewis, 76 Mo. 370; 23 Am. and Eng. Ency. Law (2 Ed.), 220; High, Ex. Leg. Rem. 789.] The doctrine with respect to such courts is that where any act is being put forward in execution of the judgment and is not fully completed,
But this doctrine is without influence if the prohibition is directed, against a court of inferior and limited jurisdiction such as that of a justice of the peace when it appears such court was possessed of complete jurisdiction in the first instance and has exhausted its judicial power in the premises, for in such circumstances, there is nothing of a judicial character upon which the prohibition may operate. The court of a justice of the peace is not only an inferior tribunal but its jurisdiction is limited within the precise terms of the statute and in this respect it is dissimilar to a court of general or superior jurisdiction which is possessed of certain inherent powers. Among the inherent powers of a court of either general or superior jurisdiction are those which afford it competent authority to withdraw and quash writs which have been issued as a result of its judgment theretofore given. So it is, judicial power continues to reside in such courts over outstanding writs and
While this doctrine obtains with respect to the courts above mentioned, it is entirely clear that it has no application to a court of inferior and limited jurisdiction which has totally exhausted its judicial power in the premises before the prohibition is awarded. This is true for the reason that if such inferior tribunal is possessed of no further power to proceed judicially, then there is nothing judicial upon which the writ of prohibition may operate. The court of the justice of the peace, as before stated, is a tribunal of limited jurisdiction and can exercise such powers only as are conferred upon it by the statute. We have been unable to discover any statutory provision authorizing the justice of the peace court to recall or quash an execution once issued on its judgment. That such court may not either recall or quash an execution issued by it has been expressly decided. Indeed, upon issuing the writ, the power of the justice is entirely exhausted except for the purpose of thereafter renewing it under the statute. [Brownfield v. Thompson, 96 Mo. App. 340.] It appears in this case the justice of the peace exhausted his judicial power in the matter when he performed the function of issuing the execution and delivering it to the constable for service. After coming into the hands of the constable, the writ was levied on personal property and an execution sale advertised thereunder. In these circumstances, the writ of prohibition is not available against the justice of the peace for the reason there no longer remained judicial power in him over the writ in question. It is clear that if the justice of the peace is wholly
It is the rule that prohibition is a preventive rather than a corrective remedy and issues only to prevent the commission of a future act instead of for the purpose of undoing an act already performed. [State ex rel. v. Ryan, 180 Mo. 32, 79 S. W. 429; State ex rel. v. Burckhartt, 87 Mo. 533, 539; High, Ex. Leg. Rem. (3 Ed.), sec. 766.]
It appearing the judicial power of the justice was exhausted by issuing the execution prior to this application for a prohibition against it and that he retains none over the subject-matter, a prohibition is not available merely to correct 'his error. So much of the judicial power of the justice as was competent to invoke the operation of a prohibition was exhausted and the act performed prior to this application. It was therefore properly denied. The judgment should be affirmed. It is so ordered.