45 Mo. 336 | Mo. | 1870
delivered the opinion of the court.
This is an application for a writ of prohibition forbidding the further entertainment or prosecution of the proceedings therein described.
The petition shows that one Talbott, late of said Montgomery county, died seized of a large amount of real estate, situated in that county, and that his personal assets were insufficient to pay his debts; that one Pittman was appointed by the County Court of Montgomery county to administer upon said Talbott’s estate; that said Pitman, subsequent to his appointment, and in all respects in due conformity to law, advertised and sold at public vendue certain of said decedent’s real estate, and that the defendant Powell became the purchaser thereof at such sale, being the highest and best bidder therefor, and that he duly complied with all the terms and conditions of said sale; that said administrator thereupon reported the sale, and all his proceedings in the premises, to said Montgomery County Court for confirmation ; that the court, at its November term, 1869, took the same into consideration, and being fully advised in relation thereto, declined to approve the sale, and by its consideration and judgment affirmatively disapproved the same.
The petition then proceeds to show that the defendant, Gilchrist Porter, judge of the Circuit Court of said county, upon the application of the other defendant, setting out and showing the facts aforesaid, on the 25th of November, 1869, issued his writ of mandamus, directed to said County Court, and commanding it to approve said sale, or show cause for its failure to do so, at the then next succeeding April term of said Circuit Court; that said mandamus proceedings are still pending, and that the same
The petition is demurred to, and the facts therein recited thereby admitted to be true. The question is therefore presented whether the petition, upon its face, makes a case which will justify this court in prohibiting the further prosecution of the mandamus proceedings complained of; and this raises the further inquiry whether the Circuit Court has jurisdiction of the cause pending before it — namely: the mandamus suit.
It is not questioned that the Circuit Court possesses a superintending control over the County Court, and that it may, by its process of mandamus, in proper cases, require the latter to proceed with the business before it, and act thereon. It has, however, no authority to determine for the County Court what judgment it shall render, or to require it to reverse its decisions, iu matters of judicial cognizance after it has once acted. It is the settled doctrine on this subject that when the subordinate tribunal acts judicially, it must be left free to exercise its best judgment, and that the superior court has no authority to dictate to the former its judgments. (State ex rel. Adamson v. Lafayette Co., 41 Mo. 224; Elkins v. Athearn, 2 Denio, 192; People v. Judges of Duchess Co., 20 Wend. 659, and see the cases cited in the opinion of the court.)
That the County Court acted judicially in its disapproval of the administrator’s sale, is not disputed. (See State ex rel. West v. Clark County Court, 41 Mo. 49, and cases cited.) It is urged, however, that the Circuit Court acquired .jurisdiction of the subject-matter of the mandamus suit pending before it, and that this court ought not, therefore, to inquire into the manner in which that jurisdiction is being exercised. This proposition contains an erroneous assumption. The court, by its process, acquired jurisdiction of the party, but not of the cause of action, to-wit: the a.ction of the court in disapproving the administrator’s sale. That was the gravamen of the complaint, and the Circuit Court, as we have seen, had no jurisdiction of it whatever.
It is further insisted that the writ of prohibition ought not to issue .for the reason that the proceedings of the Circuit Court may be reviewed in this court, through the medium of successive
It is further suggested, as an objection to these proceedings, that the complainant has no personal interest in the contest — that he is a mere stranger to the litigation. . If the fact were so, that would not necessarily dispose of the case. In State ex rel. West v. Clark County Court, 41 Mo. 49, the judge delivering the opinion of the court says that a prohibition may issue against a court acting without jurisdiction, at the “instance of any one of the parties, or even of a stranger,” and cites 36 Mo. 232; 38 Mo. 296; 5 East. 345; 1 Bay, 382; 2 Metc. 296; 23 Ala. 94; 1 Hill, 201. But the presiding justice of the Montgomery County Court, against whom the mandamus proceedings are pending, can hardly be regarded as a “ stranger” to the controversy. He is a party to it."
Peremptory writ ordered.
