State ex rel. Wheeler v. McAuliffe

48 Mo. 112

• Court: Supreme Court of Missouri
• Decided: March 15, 1871
• Status: Published

Opinion

Washer, Judge,

delivered the opinion of the court.

The relators filed their petition in the Circuit Court, praying that a mandamus might issue against the respondent, who was a justice of the peace in St. Louis county, to compel him to grant an appeal in certain cases which had been decided by him, and in which the relators were parties. Respondent answered, and upon trial of the issues of fact a verdict was rendered for the relators, upon which judgment was entered. Respondent then filed his motion in arrest of judgment, for the following reasons: First, that the pleadings and alternative writ issued herein do not disclose any case authorizing the court to issue a writ of mandamus; second, that on the pleadings of the relators, it appears that they have mistaken the remedy which the law gives them in a case of the kind stated in the pleadings; third, that the Circuit Court can only compel a justice of the peace to allow an appeal by rule and attachment, and not by a writ of mandamus.

The motion in arrest was overruled, and the respondent appealed to the General Term, where the judgment at Special Term was reversed, and the relators have brought the case'here.

If it can be found that mandamus is not maintainable in' a case like this, it will be unnecessary to examine the other points raised. The principle is unquestioned, laid down by the text writers and established by the adjudged cases, that mandamus will lie only where the relator has a specific right, and the law has provided no other specific remedy. (Dunklin County v. District Court, 23 Mo. 449 ; State ex rel. Adamson v. Lafayette County Court, 41 Mo. 225.)

The petitioner here, by complying with the law, had the right to have his appeal allowed. But 'has the law provided him with no other remedy than a resort to this extraordinary process ? By the statute it is provided that “if the justice fail to allow an appeal in the case when the same ought to be allowed, or if, by absence, sickness, or any other, cause, on his part, an appeal cannot be taken in time, the Circuit Court, or any other court having jurisdiction of such appeals, on such fact satisfactorily appearing, may by rule and attachment compel the justice to allow the same and to return his proceedings in the suit, together with the papers required to be returned by him.” (2 Wagn. Stat. 849, § 10.)

Here the law has plainly and clearly pointed out a specific remedy to be pursued on such occasions. By the summary process of rule and attachment the object is attained, and there is no necessity for invoking the issuance of this writ. There was, therefore, no reason for this proceeding, and the judgment at General Term should be affirmed.

The other judges concur.