87 Mo. 374 | Mo. | 1885
Kohn recovered judgment against a corporation. After execution returned nulla bona, he filed his motion for execution against the relators, Lucas & Johnson, owners of unpaid stock. Prom the judgment •awarding an execution against them, they appealed1. The court of appeals affirmed the judgment on the ground that the motion was not preserved in the bill of exceptions, though contained in the transcript.
Mandamus is the appropriate remedy to set the machinery of the courts to which it is addressed, in motion, but it will not direct the performance of any particular judicial act. The subordinate tribunal will be left free to give its best judgment. The scope and province of -the writ is to prevent a failure of justice from delay or refusal to act, when addressed to a court acting judicially. State ex rel. Adamson v. Lafayette County Court, 41 Mo. 222; Trainer, etc., v. Porter et al., 45 Mo. 338. Nor
Still, the contention is that the court of appeals refused to go into the merits of the case depending before it, because of an erroneous view of a matter of practice preliminary to the consideration of the cause, and that in such cases mandamus will lie. One of the cases cited in support of relators’ position, is that of State ex rel. Huey v. Cape Girardeau Court of Common Fleas, 73 Mo. 560. There the court ordered the cause “dropped from the docket.” That was a refusal to proceed to final judgment, and the writ was awarded on the general principles before stated. The same maybe said of Cowan v. Fulton, J., 23 Gratt. 579. The distinction contended for was recognized in Castello v. St. Louis Circuit Court, 28 Mo. 259, which was a proceeding under a statute to contest the election of an officer, and it was held, Scott, J., dissenting, that if the circuit court declined to go into the merits of the cause because of a want of the statutory notice, that presented a preliminary question of law which could be reviewed by mandamus, and if the court called for a notice not required a peremptory writ should go.
Whatever there may be in the distinction, or exception to the geueral rule, it can have no application in this case. Here the cause, by due course of law, went to the appellate court. That court took cognizance of the case and proceeded to dispose of it. The first matter for determination was to ascertain what questions were presented by the record. That involved a consideration of the sufficiency of the bill of exceptions, and the judgment in that respect called for the deliberation of the court the same as any other question arising in the cause. It was a.n essential step in the case. While the question thus far considered was suggested rathef
