150 Mo. App. 325 | Mo. Ct. App. | 1910
This is an original proceeding in mandamus instituted in this court. An alternative
It appears the respondent, Hon. William B. Homer, is a judge of the circuit court of the city of St. Louis and presides oyer Division No. 4 of that court. Having dismissed a. case in which relator was plaintiff and Frank O. Deckmeyer was defendant as though the court over which he presided had no. jurisdiction to proceed therewith, the present application for mandamus is to the end of requiring respondent as the judge of such court to reinstate the cause for judicial consideration.
It appears relator, as plaintiff therein, instituted its suit for damages in the court of a justice of the peace of the city of St. Louis against Frederick C. Deckmeyer, defendant, on account of an alleged breach of a covenant of warranty for seizin contained in a deed conveying real estate. Due service of summons was had on defendant Deckmeyer therein. Both parties having appeared before the justice on the day set therefor, the trial of the cause proceeded, and upon its conclusion the justice certified the case to the circuit court of the city of St. Louis, under the statute, for the reason that it appeared title to real estate became an issue on the trial before him.
Our statute, section 3951, Revised Statutes of 1899, section 3951, Ann. St. 1906, among other things, provides substantially, if, in any action brought before a justice of the peace, the title to real estate appears to be an issue on the trial, the justice shall maké an entry of such fact in his docket and certify the cause, together with all papers and process therein, to the clerk of the leircuit court and the cause shall be docketed, and the circuit court shall be possessed of the same and proceed therewith without regard to the amount in controversy or any error in the decision , of the justice in certifying the case to said court as if it were originally commenced therein.
After the cause thus reached the circuit court from the justice of the peace, it wTas duly assigned to Division No. 4, over which the respondent, Judge Homer, presides, and set upon the docket for hearing in due course.
Defendant in that cause thereupon appeared and moved the circuit court in writing to dismiss plaintiff’s petition on the ground it had no jurisdiction thereof. As to this matter, it appears from the alternative writ that such motion was argued on May 12, 1910, and the court took the same under advisement. Thereafter, on the 13th day of June, 1910, the court, by an order duly entered of record, sustained defendant’s motion to dismiss said cause and by its order then duly entered dismissed the complaint in said cause and thereupon refused to proceed further or to entertain or consider said cause.
It is said the writ of mandamus lies in the circumstances of this case for the reason the court had jurisdiction of the suit for a breach of convenant so certified thereto by the justice of the peace and refused to proceed therewith. It is not sought to mandamus the circuit court as to what judgment it shall give on the merits of that-controversy but only to compel it to reinstate the cause on its docket for consideration. There can
The writ of mandamus is not one of right but, on the contrary, its issue is discretionary with the court to which the application is made. However, where it appears the relator has a clear legal right and no other adequate remedy at law exists to the end of reviewing and determining the same, the mandamus should go. [19 Am. and Eng. Ency. Law (2 Ed.), 725, 745; State ex rel. Watkins v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112.] The proceeding by mandamus is an extraordinary remedy and, therefore, never allowed when another adequate remedy at law in simpler form may be pursued to the end of
The statute, section 806, Revised Statutes 1899, section 806, An. St. 1906, authorizes an appeal from any final judgment in a case pending in the circuit court. No one can doubt that a judgment of the circuit court dismissing plaintiff’s case and refusing to exercise jurisdiction with respect thereto is final within the sense of the statute authorizing an appeal therefrom. When the court exhausts its jurisdiction in respect of a case by effectually disposing of it finally as by dismissing it from its status as a cause pending, the judgment is final in the sense authorizing an appeal. [Wolff v. Vette, 17 Mo. App. 36; 6 Ency. Pl. and Pr. 998; for the principle, see also Gale v. Michie, 47 Mo. 326; State ex rel. v. Dobbin, 54 Mo. 391, 394; Iron Mountain Bank v. Armstrong, 92 Mo. 265, 4 S. W. 720.] Indeed, in this state, a judgment of dismissal for the want of prosecution in some circumstances is regarded as final in the sense authorizing an appeal. However, it seems the rule ought not to be extended beyond the circumstances of the case which established it. See Iron Mountain Bank v. Armstrong, 92 Mo. 265, 4 S. W. 720.
Although the alternative writ recites that relator has no other adequate remedy at law in this instance, it pointedly avers as well the circuit court dismissed the case, Avhich it now seeks to have reinstated by mandamus, on thé theory it had no jurisdiction to proceed thereAvith. It thus conclusively appears that a final judgment was entered therein which exhausted the ju