Derfelt v. Yocom

692 S.W.2d 300, 1985 Mo. LEXIS 336

• Court: Supreme Court of Missouri
• Decided: June 25, 1985
• Docket: 66404
• Status: Published

Opinions

BILLINGS, Judge.

Relators Roy and Virginia Derfelt and Stephen and Madelyn Bazzano, were sued by Traders Bank of Kansas City on a promissory note and their personal guarantees.¹ On February 14, 1984, Respondent, The Honorable Robert E. Yocom, Special Judge of the Circuit Court of Jasper County, ordered Traders Bank’s cause of action against relators dismissed with prejudice because Traders Bank at that time had not yet complied with an earlier discovery sanction order.

Thirteen days later Traders Bank filed a motion styled, Motion For Reconsideration Of Dismissal Order And For Reinstatement Of Cause As To Defendants Derfelt and Bazzano.2 The motion alleged compliance with the court’s discovery sanction order and stated compliance had been delayed because counsel was out of the country and his return delayed due to bad weather. On March 15, 1984, respondent, without notice to relators and without reference to the above-styled motion, reinstated Traders Bank’s action against relators. Because respondent failed to give relators notice and an opportunity to be heard before reinstating the cause, relators argue that he should be prohibited from exercising any further authority over them since he long ago lost jurisdiction to do so.³

The question we must consider in this case is whether we should exercise our discretionary authority to make permanent the preliminary writ of prohibition we issued on December 18, 1984. This we decline to do. A writ of prohibition does not issue as a matter of right. State ex rel. Hannah v. Seier, 654 S.W.2d 894, 895 (Mo. banc 1983). Whether a writ should issue in a particular case is a question left to the sound discretion of the court to which application has been made. Id. See also State ex rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo.1977).

Because this extraordinary legal remedy provides litigants with abundant opportunity to circumvent the normal appellate process, we are mindful that courts should employ the writ judiciously and with great restraint. A court should only exercise its discretionary authority to issue this extraordinary remedy when the facts and circumstances of the particular case demonstrate unequivocally that there exists an extreme necessity for preventive action. Absent such conditions, the court should decline to act.

The facts and circumstances of this case lead us to conclude that issuing a writ of prohibition would be an unwarranted and injudicious exercise of our discretionary authority. In so doing we do not decide the question of whether relators’ claims of trial court error are meritorious or nonmeritorious. Rather, we have only determined that the unique facts of this controversy do not warrant the exercise of our discretionary authority. The preliminary order in prohibition is quashed.

RENDLEN, C.J., HIGGINS and WEL-LIVER, JJ., and DOWD, Special Judge, concur. DONNELLY, J., concurs in result. BLACKMAR, J., concurs in result in separate opinion filed. GUNN, J., not sitting.

1 . There were nine other defendants named in the suit.

2 . This motion was served upon relators.

3 . Relators’ argument is founded upon Rule 75.-01 which reads in part:

The trial court retains control over judgments during the thirty day period after entry of judgment and may after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.