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08/16/83 STATE EX REL. GEORGE MORASCH v. HONORABLE

August 16, 1983

STATE EX REL. GEORGE MORASCH, II, RELATOR,
v.
HONORABLE WILLIAM M. KIMBERLIN, JUDGE, CIRCUIT COURT, CASS COUNTY, RESPONDENT.



Original Proceeding in Prohibition

The opinion of the court was delivered by: Donnelly

This is prohibition.

On December 10, 1980, Colleen Morasch filed a petition for damages against George Morasch. The petition for damages contained an instruction to the clerk of the court to: "Hold for entry--Do not serve." Colleen first requested service of process on December 14, 1981, one year and one day after the expiration of the applicable statute of limitation. § 516.120(4), RSMo 1978. George filed a motion to dismiss, alleging Colleen's cause of action was barred by the statute of limitation. Respondent Judge Kimberlin, after hearing the parties on the question, overruled the motion to dismiss. An application for prohibition was filed in the Western District of the Court of Appeals seeking to prohibit Judge Kimberlin from proceeding to trial. A preliminary order was issued by the Court of Appeals and, after briefing and argument, was made absolute. The cause was transferred to this Court on certification of a Dissenting Judge.

The question on this appeal is whether a preliminary rule in prohibition should be made absolute against a circuit Judge who, unless prohibited, intends to proceed to trial after ruling that § 516.120(4), RSMo 1978, does not bar Colleen's claim.

In State ex rel. Union Depot Ry. Co. v. Southern Ry. Co., 100 Mo. 59, 61, 13 S.W. 398 (1890), this Court held that a writ of prohibition did not lie to prevent the circuit court of the City of St. Louis from entertaining proceedings for the condemnation of property on the ground that it had no jurisdiction over the special class of property involved in the proceedings and said:

"We are of the opinion that the question thus raised is not a proper one for our decision upon this application. Where the action or course which a court is about to adopt is such as it has lawful power to take, it should not, ordinarily, be prohibited from taking it.

"Whether the particular facts on which the court proceeds in that regard are, or are not, sufficient to justify its exercise of jurisdiction, is a question of law, the solution of which either way cannot impair the court's right to apply its judicial power in the premises according to its view of the law and of the facts before it. For instance, where a court has jurisdiction to render judgments, in ordinary civil causes, it would be manifestly improper to issue a writ of prohibition against it on an application alleging that it was about to pronounce such a judgment on a petition which did not state a cause of action, but which the trial court had held sufficient, or because the latter had ruled erroneously that the plaintiff had a legal capacity to maintain the action."

In 1912 and 1914, the Union Depot position was buttressed by Judge Lamm in State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347 (banc 1912) and State ex rel. Warde v. McQuillin, 262 Mo. 256, 171, S.W. 72 (banc 1914). However, in 1936, this Court paid deference to the Union Depot position in State ex rel. Johnson v. Sevier, 339 Mo. 483, 490, 98 S.W.2d 677, 680 (banc 1936) and then said: "But, where a petition reveals that the pleader has not stated, and cannot state, a cause of action of which the circuit court would have jurisdiction, then prohibition will lie." The Johnson position proceeded through State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939) to State ex rel. Lumbermens Mutual Casualty Company v. Stubbs, 471 S.W.2d 268 (Mo. banc 1971). In Lumbermens, this Court made a preliminary rule in prohibition absolute against a Judge who intended, unless prohibited, to rule that § 516.120, RSMo 1978, did not bar plaintiff's claim.

By contrast, the Supreme Court of California, in its treatment of the question before us, has remained on track. In 1890, in Bishop v. McKinley, 87 Cal. 226, 25 P. 435, 437 (1890), a case involving the exercise of eminent domain, the Supreme Court of California expressly adopted the Union Depot position. That position proceeded through Redlands High School Dist. v. Superior Court of San Bernardino County, 20 Cal.2d 348, 125 P.2d 490, 496, 497 (1942) to County of Santa Clara v. Superior Court, 4 Cal.3d 545, 483 P.2d 774, 775, 776, 94 Cal.Rptr. 158 (Bank 1971). In County of Santa Clara, the Supreme Court of California refused to enter a peremptory writ of prohibition against a Judge who intended, unless prohibited, to proceed to trial after ruling that a statute of limitation did not bar plaintiffs' claim and said:

"The leading case of Albelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942, pronounced the rule that prohibition may be invoked only to restrain an act in excess of jurisdiction. One year later this court, in Redlands High School District v. Superior Court (1942) 20 Cal.2d 348, 125 P.2d 490, faced the problem of applying that decision to a case involving noncompliance with a claims requirement. There, the plaintiff brought a personal injury action in a Justice court against the school district, but failed to file the claim that was then required under section 2.801 of the School Code. The Justice court nevertheless gave judgment for plaintiff; the superior court, on trial de novo, affirmed. Since no appeal would lie, defendants brought certiorari.

"Refusing to issue the requested writ, this court reasoned that: 'Not every violation of a statute constitutes excess of jurisdiction on the part of a court. The doctrine relied upon by petitioners applies only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of the extraordinary writs of certiorari or prohibition. Where, as here, the statute does not restrict the power of the court but merely sets up a condition precedent to the establishment of plaintiff's cause of action, we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.' * * *."

We must recognize that "he constitutional limits on judicial authority to effect appellate jurisdiction are violated by overgenerous use of the writ" of prohibition. Tuchler, Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ?, 40 Mo. L. Rev. 577 (1975). We are persuaded that we should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error. The Union Depot position is as sound today as it was in 1890. See, Comment, The Writ of Prohibition in New York--Attempt to Circumscribe an Elusive Concept, 50 St. John's L. Rev. 76 (1975).

We need not decide whether respondent Kimberlin was right or wrong on the question of law in his case. In our view, the requirement of ยง 516.120(4), (supra) , "is one which goes to the elements of the plaintiff's right to recover rather than to the power of the court. Judgment in favor of the plaintiff in the absence of such a claim is a grievous error of law and a violation of statute. But not every violation of a statute constitutes excess of jurisdiction on the part of a court. The doctrine relied upon by petitioners applies only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of the extraordinary writs of certiorari or prohibition. Where, as here, the statute does not restrict the power of the court but merely sets up a condition precedent to the establishment of the plaintiff's cause of ...


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