State ex rel. Smith v. Levens

Decided December 10, 1888

Missouri Court of Appeals · decided 1888-12-10

— Hon. Richard Field, Judge.' The case is stated in the opinion. In State ex rel. v. Police Commissioners, 16 Mo. App. 48, the practice was exactly the same as in this case. The “petition” or application for prohibition being filed ‘ ‘ the defendants demurred generally to this petition and the demurrer was sustained.” This was in the circuit court. An appeal was taken and entertained by court of appeals without doubt or question. See also State ex rel. ■».

Cited by 2 later decisions — most recently May 1910

2 state decisions

Relies on State ex rel. Missouri Pacific Railroad v. Seay · People Ex Rel. Adams v. Westbrook

Good law ✅— No negative treatment on recordhow we know

Appeal dismissed · Decided 1888-12-10

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Hall, J.

¶1— This was an application to the circuit court for a writ of prohibition to Henry C. Levens, recorder of the city of Sedalia, and said city. The object sought was to prohibit the said recorder and city from further holding cognizance of, or prosecuting a certain prosecution begun and pending before said recorder. The court sustained a demurrer to the application, and an appeal was taken to this court. “The writ of prohibition is not like the writ of habeas corpus, a writ of right. It is a writ, the award of which is to be governed by the discretion of the court applied to the facts presented by the individual case.” State ex rel v. Seay, 23 Mo. App. 629; High on Ex. Leg. Rem., sec. 765; People v. West, 89 N. Y. 152. For this reason an appeal will not lie from a denial of the writ. High on Ex. Leg. Rem., sec. 794; People v. West, supra.

¶2The appeal must, therefore, be dismissed. It is so ordered.

All concur.