Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/25/93 STATE MISSOURI EX REL. MISSOURI STATE

October 25, 1993

STATE OF MISSOURI EX REL. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, RELATOR,
v.
THE HONORABLE BYRON L. KINDER, RESPONDENT.



Spinden, Ulrich, Smart

The opinion of the court was delivered by: Spinden

ORDER QUASHING PRELIMINARY WRIT OF PROHIBITION

On May 24, 1993, this court entered a preliminary order in mandamus. Having received the parties' briefs and heard oral argument, this court enters this order quashing its preliminary order in mandamus.

Mandamus is appropriate only to compel performance of a clearly-established, presently-existing right State of Missouri ex rel. Brentwood School District v. State Tax Commission, 589 S.W.2d 613 (Mo. banc 1979). Mandamus does not lie where other remedies are available, State of Missouri ex rel. Keystone Laundry and Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11 (Mo. 1968), and it cannot be a substitute for appeal. State of Missouri ex rel. Boyd v. O'Toole, 670 S.W.2d 586 (Mo. App. 1984).

Mandamus is not appropriate in this case because the relator had an adequate remedy available, an appeal, and chose not to exercise it. Moreover, the relator does not have a presently-existing right; the trial court lost jurisdiction of the case 30 days after entering its dismissal. Rule 81.05.

Relator relies on State of Missouri ex rel. Rothermich v. Gallagher, 816 S.W.2d 194 (Mo. banc 1991), in asserting that this court should issue a writ of mandamus notwithstanding its failure to appeal the trial court's dismissal. Indeed, the Rothermich court said, "Petition for writ of mandamus is an appropriate remedy to reinstate a petition erroneously dismissed for improper venue." Id. at 197. We do not however, have any indication in Rothermich, or in any other decision construing § 476.410, RSMo Supp. 1992, that the relator waited until after the 30-day period of Rule 81.05 had expired before seeking its writ.

For these reasons, we quash our preliminary writ of mandamus.

Dated this 25 day of October, 1993.

Paul M. Spinden, Presiding Judge

Writ Division

Ulrich and Smart, JJ., concur.

19931025

© 1997 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.