author: WOODSON, J.

text:
    THE STATE ex rel. SPRING RIVER ELECTRIC POWER COMPANY v. BERRY G. THURMAN.
    In Banc,
    December 31, 1910.
    1. CONTINUANCE: Upon Condition: Payment of Costs. The circuit court, upon plaintiff’s application for a continuance, has '• power to continue the case upon condition that the case is to stand dismissed unless the costs are paid by plaintiff ten days before the first day of the next term; and plaintiff, by accepting the continuance, accepts the condition upon which it was made. And if the costs are not paid, the case stands dismissed at the next term without any further order.
    2. DISMISSAL: Appeal: Mandamus. An appeal will lie from an order dismissing a cause for failure to pay costs at the term at which a continuance was granted to, plaintiff; and, if there is any error or abuse of discretion in said order of dismissal, it can be cured by -appeal, and hence mandamus will not lie to compel the trial court to reinstate said cause.
    Mandamus.
    Peremptory writ denied.

      Halbert H. McCluer and Frans E. Lindquist for relator.
    (1) There is no complaint by the relator about taxing the costs of such continuance against the plaintiff in said cause, the Spring River Electric Power Company. The relator, however, objects to the paying of witness fees of P. J. Lenliard, 1 day and 434 miles travel from Sapulpa, Oklahoma, to Lamar and return, $22.9’5. There is no statute authorizing the taxing of such non-resident witness fee. Ever since May 7, 1906, there has been on file in the office of the clerk of said court, a bond for costs, and no motion to file' an additional bond has been filed by said defendants. No execution was issued by the clerk of said court for such term costs. R. S. 1899, secs. 682 and 1573. Can it be presumed that the plaintiff’s officers, had they known about the conditional order made by the court, would have permitted a case of such importance to be dismissed for non-payment of costs ? Surely not. As we understand the method of judicial procedure, the only time that a ease can be dismissed for want-of prosecution, is when plaintiff is duly and' solemnly called in court, during term, when the case is called, and neither plaintiff nor counsel appears. As to the authority of the court to make an order to take effect upon a certain contingency in the future, we have been unable to find any statute or decision. All that such order could have amounted to was a “threat” that the court would dismiss the ease at the next term, unless the costs had been paid in that time. (2) The general rule that mandamus is the proper remedy to compel an inferior court to reinstate a cause which has been improperly stricken, from the docket, was first decided by this honorable court in 1822, and continuously thereafter that rule has been followed. Astor v. Chambers, 1 Mo. 19Í; Miller v. Richardson, 1 Mo. 310'; State ex rel. v. Court of Common Pleas, -73- Mo. 560; State ex rel. v. Neville, 157 Mo. 386-; State ex rel. v. Smith, T72 Mo. 446.

      II. W. Timmonds and J. D. Harris for respondent.
    (1) The court exercised a sound discretion in making the order of continuance- conditional upon plaintiff’s paying the term costs, and ordering the case to stand dismissed for plaintiff’s failure to comply with such condition. 14 Cyc. 450; Larimore v. Bobb, 114 Mo. 450; Street v. Bushnell, 24 M-o. 328; Pitldn v. Flagg, 198 Mo. 646. The court may make a dismissal conditionalon plaintiff’s non-compliance with theterms imposed by its order, and may make a dismissal conditional on plaintiff’s refusal to pay costs. 14 Cyc. 453; Pitkin v. Flagg, 198 Mo. 646-; Larimore v. Bobb. 114 Mo. 450. A motion for a continuance is addressed to the sound discretion of the court. And when a party lias liad several continuances on Ms application, and applies for another, the court may properly he more strict than on the previous applications, and any reasonable conditions imposed by tbe trial court will be sanctioned-by the appellate court. State v. Maguire, 69 Mo. 205. Tbe granting or refusing of a continuance is a matter resting largely in tbe discretion of tbe trial court, and unless it clearly appears that such discretion has been abused tbe appellate court will not interfere. Carpenter v. Meyers, 32 Mo. 213; State v. Maguire, 69 Mo. 205-; State v. Cummings, 189 Mo. 641; State v. Riney, 137 Mo. 104; State v. Parker, 106 Mo. 217. Likewise a motion to redocket a case dismissed for want of prosecution is addressed to tbe discretion of tbe trial court, and tbe appellate court will not interfere with such discretion, unless manifestly abused. Crane Co. v. Hawley, 54 Mo. App. 603; Griffin v. Veil, 56 Mo. 310. "Where plaintiff shows no diligence, bis suit should- be dismissed for failure to prosecute. Pitkin v. Flagg, 198 Mo. 646. (2) Plaintiff has an adequate remedy by appeal: (-a) An appeal lies from an order overruling a motion to reinstate tbe cause on tbe docket. Larimore v. Bobb, 114 Mo. 446; Crane Co. v. Hawley, 54 Mo. App. 60S. (b) An appeal lies from an order dismissing tbe case for failure to prosecute. Pitkin v. Flagg, 198 Mo. 646; Crane Co. v. Hawley, 54 Mo. App. 60S. (c) An appeal lies from an order of dismissal. State ex rel. v. Mosman, 112 Mo. App-. 540. (3) Mandamus will not lie where tbe matter is reviewable by appeal or writ of error. Williams v. Court of Common Pleas, 27 Mo. 225; State ex rel. v. Mosman, 112 Mo. App. 549; State ex rel. v. Lubke, 85 Mo. 338; Blecker v. Law Commissioner, 30 Mo. Ill; State ex rel. v. McKee, 150 Mo. 233; State ex rel. v. Fort, 180 Mo. 109; State ex rel. v. McCutcban, 119 Mo. App. 76.
   WOODSON, J.

This is an original proceeding by mandamus brought in this court against tbe respondent as judge of the circuit court of Barton county to compel tbe reinstatement of tbe case of tbe Spring River Electric Power Company against H. J. Mink and Albert Rich, which was dismissed for failure to comply with an order of the court to pay certain costs mentioned therein. An alternative writ was issued, and in due course respondent made and filed his return thereto.

The petition for the writ is as follows (formal parts omitted):

“ Comes now the above named relator, and respectfully represents and shows to this honorable court:
“That the Spring River Electric Power Company is now, and at all of the dates and times hereinafter mentioned was,”a corporation duly organized and existing under and by virtue of the laws of the State of Missouri. That the respondent, the Honorable B. G. Thurman, is a duly elected, qualified and acting judge of the circuit court within and for Barton county, State of Missouri. That on or about the 10th day of January, 1910, and for a long time prior thereto, there was then and there pending in the circuit court of Barton county, Missouri, a.certain action entitled: ‘ The Spring River Electric Power Company, plaintiff, vs. Lavina Mink, as administratrix of the estate of H. J. Mink, deceased, and Albert Rich, defendants,’ numbered. 2660, which said action was for actual and exemplary damages — $7500 actual and $5000 exemplary damages, respectively instituted by said relator, the Spring River Electric Power Company, as plaintiff, against said II. J. Mink and Albert Rich, as defendants, in the circuit court of Jasper county, Missouri, on or about the 31st day of May, 1905, thereafter transferred to the circuit court of Barton county, Missouri, on a change of venue, and during the pendency of such suit the said H. J. Mink having died, his duly appointed, qualified and acting administratrix was thereupon made a party defendant to said cause, and both of said defendants, Lavina Mink, as administratrix of tlie estate of said H. J. Mink, deceased, and said Albert Rich, filed their separate answers in said cause, and the plaintiff having filed its reply thereto, said cause stood properly for trial at the January, 1910, term of said circuit court of Barton county, Missouri.
“That on said 10th day of January, 1910, same being on the first day of January, 1910', term of said circuit court of Barton county, Missouri, the said relator, the Spring River- Electric Power Company, as plaintiff in said cause, caused to be filed in the office of the clerk of the circuit court of said Barton county, Missouri, an application for continuance, by reason of the serious illness of James J. Hitt, Esq., a duly licensed and practicing attorney of Kansas City, Missouri, and attorney of record for said plaintiff, which said application for a continuance was presented to said circuit court by one J. B. McGilvray, E-sq., a duly licensed and practicing attorney of Lamar, Missouri, at request of H. H. McCluer, Esq., one of the attorneys for plaintiff; that said application for a continuance was taken up, considered and sustained by the respondent, the judge of said circuit court of Barton county, on said 10th day of January, 1910, by the following order on the- judge’s docket, to-wit:
“ ‘ Order of Court. Plaintiff filed application for a continuance. Cause continued on application of the plaintiff and at plaintiff’s costs and ordered that if the costs of the term are not paid ten days before the next term of this court, the same to stand dismissed for want of prosecution.’
“That thereupon, and by virtue of said aforesaid order of court,, the clerk of said court entered the following order of record, in circuit court records No. 5, of Barton county, at pages 613 and 614, to-wit:
“ ‘January 10,1910. " Now comes on for final hearing and determination the application of plaintiff for continuance heretofore filed herein, and the same being seen, heard and duly considered by the court, is by the* court sustained and the. cause is. hereby continued, at plaintiff’s cost, and all costs of'this term of court is hereby taxed against plaintiff, and it is further ordered by the court in sustaining said application for continuance that the plaintiff pay all costs of this term of court herein, taxed v.. plaintiff on or before ten days before the first day of the next term of this court; and if the said plaintiff does not pay such costs on or before ten days before ihe next term of this court, then this cause is to stand dismisssed for want of prosecution. ’
“That thereafter, on or about the 4th day of April, 1910, the clerk of said circuit court of Barton county, attempted to dismiss said cause, as per the previous order of the court, made on said 10th day of January, 1910.
That neither the officers, agents or .attorneys of the Spring River Electric Power Company had any knowledge or notice of such conditional order having been attached to said order granting continuance, until the 9th day of April, 1910, when they were so informed, by telegram, from J. D. Harris, Esq., one of the attorneys for said defendants, and that the said J. B. McGilvray had no knowledge of such conditional order having been rendered by the court until the 10th day of April, 1910.. • ■
‘ ‘ That during all of said dates and times, from the 7th day of May, 1906-, and up to the time of the filing of this petition, there was on file in the office of the clerk of the circuit court of said Barton county, a good and sufficient bond for costs in said cause, and no fee-bill issued against the plaintiff and the sureties on such cost bond on such term bill.
“That thereafter, on the 11th day of April, 1910, same being on the first day of the regular April* 1910', term of said circuit court, the said relator as plaintiff caused to be filed in the office of the clerk of the circuit court of said Barton county, a motion to set aside such -pretended order of dismissal, and reinstate said cause and set the same down for trial at some subsequent day of said April term (such trial having been previously set down for trial on Monday, the 11th day of April, 1910'), for the following reasons-, to-wit:
“First. Because the court was wholly without jurisdiction or power to attach to such order of continuance, at cost of the plaintiff, a proviso that unless the cost of such continuance be paid on or before ten days before the next term of this court, then this action should- stand dismissed for want of prosecution.
“Second. Because during all of said dates and times there was a good and sufficient bond for costs filed in said cause, and no fee-bill was issued by the clerk of said court against the plaintiff and the sureties on such bond, on account of such continuance.
“Third. That the pretended act or acts of the clerk of this court, on or about the 4th day of April, 1910, in attempting to dismiss said cause, was without authority of law, null and void' and an attempt by a ministerial officer to exercise functions of a judicial officer.
“Fourth. . Because the plaintiff, nor any officer, agent or attorney of such corporation, had any knowledge or notice of such conditional order having been made, until the 9th day of April, 1910', and after such pretended dismissal.
“Fifth. Because there could- be no ground for the dismissal of such cause for want of prosecution, during vacation.
“Sixth. Because no dismissal of said cause for failure to pay the costs of such continuance could be made in vacation of this [circuit] court.
• “Which said motion was- accompanied by the affidavits of Frank O. Chesney, J. B. McG-ilvray and Frans E. Lindquist, attached thereto and made a part of such motion, a copy of which said motion and affidavits are hereunto annexed, marked ‘Exhibit A.’ and made a part of this petition.
“That thereafter on the first day of the April term, 1910, of said circuit court, to-wit, on the 11th day of April, 1910, said motion came regularly on for hearing and determination before said respondent, as judge of said court, supported by such affidavits aforesaid, and without any affidavit or evidence, or argument in' opposition to such motion by the attorneys for the defendants, the said respondent willfully, unlawfully and arbitrarily overruled such motion and refused to permit the plaintiff to further prosecute such civil action for damages.
“That no appeal lies from such order, and no writ of error can legally issue by reason of such wrongful and arbitrary orders, and that the relator, by reason thereof, has no adequate remedy at law.
‘ ‘ That it is the duty of the respondent to try, hear and determine such cause upon its merits, in order that justice and equity may be done in the premises in accordance with law.
“Wherefore, relator prays that an alternative writ of mandamus may issue, directed to said B. Gr. Thurman, judge of said court, commanding' him to set aside such pretended order of dismissal and reset such cause down for trial and proceed to hear, try and determine the same, or show cause before this honorable court why a peremptory writ of mandamus should not issue, and for such other and further relief as to this honorable court may seem just and equitable in the premises, and your relator will ever pray, ’ ’ etc.

Certain affidavits in support of the petition were filed therewith. Since, however, the relator demurred to the return, which admits the facts to be as stated therein, it becomes necessary to further "notice said affidavits.

The alternative writ is not abstracted. Since, however, the respondent makes no point on account of that omission, we will treat the writ as conforming to the petition, and pass that question without further comment.

The return of respondent is. as follows (formal parts omitted):

“And now comes the said Berry G. Thurman, judge of the 26th Judicial Circuit of Missouri, and for return to the writ of mandamus, heretofore issued in this case, says that said relator ought not to have its writ of peremptory mandamus, and for reason therefor,
“Admits that the Spring River Electric Power Company is a corporation as alleged in relator’s petition and the alternative writ of mandamus herein ;
“Admits that the respondent, Berry G. Thurman, is the duly elected, qualified and acting judge of the circuit court of Barton county, Missouri;
“Admits that the action entitled, ‘The Spring River Electric Power Company, plaintiff, v. Lavina Mink et al., defendants,’ referred to in relator’s.'petition, was filed in the Jasper Circuit Court on or about the 31st day of March, 1905, and was pending, on change of venue therefrom, in the circuit court of Barton county, Missouri, with the parties, pleadings and issues therein, as alleged in said writ;
“Admits that plaintiff in said suit made application for continuance therein on the first day of January, 1910, term of said Barton Circuit Court, and that the respondent as judge of said circuit court sustained said application as alleged in said writ, by the order of record of said court therein set out, and admits said docket entry and record entry are therein correctly stated;
“Admits that plaintiff in said suit filed its motion in said circuit court to reinstate said cause, on the first day of the April, 1910, term of said court; admits said motion is correctly set out in the writ; and admits that the respondent, as snch judge of said court, overruled said motion.
“Denies that on the 4th day of April, 1910, or at any other time, the clerk of said circuit court of Barton county attempted to dismiss said cause;
“Denies that the officers, agents or, attorneys of the Spring River Electric Power Company had no knowledge or notice of the aforesaid conditional order of continuance, until the 9th day of April, 1910; and avers said J. B. McGilvray was present when said conditional order was made hy respondent as judge of the circuit court of Barton county, and the same was publicly announced from the bench by respondent.
“Respondent further answering to said petition, denies each and every allegation therein contained not hereinbefore admitted to he true.
‘ ‘ Respondent for further answer and return to the writ herein states that the said case of Spring River Electric Power Company v. Mink et al., referred to in relator’s petition, came to the circuit court of Barton county on change of venue from the circuit court of Jasper county, on application of the plaintiff therein on the 27th day of November, 1905, and thereafter remained on the docket of said Barton Circuit Court without due prosecution thereof on the part of the plaintiff therein until and except plaintiff filed its said motion to reinstate said cause; that .on account of plaintiff’s failure to prosecute said action as aforesaid, re7 spondent as the judge of the said circuit court, did, from term to term thereof, repeatedly warn counsel for plaintiff that unless plaintiff was ready for trial and tried its said cause at the next term of said court, same would be dismissed .for failure to prosecute such suit; that notwithstanding the admonition of .respondent judge of said court in that behalf, plaintiff failed to duly prosecute said suit and sought continuances therein; and the respondent judge of said circuit court did grant plaintiff continuances therein, term by term, up to and including the conditional continuance aforesaid.
“That said case was set for trial on Monday, the first day of the September term, 1909, of said court, and on that day defendants appeared in court with their witnesses and counsel, and when said case was called by respondent for trial in its due order on the docket, defendants announced ready and demanded trial, defendant Rich having come, as the respondent judge of said court was then credibly informed, and as he then and now verily believes, from C'lovis, New Mexico, where said Rich was engaged in business, to Lamar, Barton county, Missouri, for the sole purpose of attending the trial of and defending said action; that plaintiff also appeared at that time in said-case, and made application for a continuance therein on the ground of surprise at the amended answers filed by defendants on said day; that thereupon respondent stated that said case would be reset for trial on Friday, the 17th day of September of said September term of court, and announced the continuance of the case until that day; that thereafter, and on the same day, being the first day of said term, counsel for plaintiff urged that plaintiff could not get ready for the trial of said case- at said September term, stating as reason therefor that J. L. Morton was a material witness for plain - tiff in the trial of said case,' and claiming that he whereabouts of said witness was unknown to plaintiff and its counsel at that time, and on that account they were unable to secure his presence at that term; that defendants opposed the continuance of the case over the term, alleging their preparation for trial and the bringing of said Rich from New Mexico for the sole purpose thereof, and insisted that the case be tried during said September term of court; that notwithstanding the inconvenience occasioned to defendants therein, respondent, as such judge, sustained, over defendants’ protest, plaintiff’s application for a continuance, and thereupon ordered the case continued to the then next term of court, respondent then and there admonishing plaintiff’s attorneys that the case must he tried at said next term of court, or the same would he dismissed for failure to prosecute; that neither of defendants nor any of theirwitnessesresided in Barton county, Missouri.
“That at the said next term of said Barton Circuit Court, the same being the January, 1910, term thereof, and on the first day of said term, said cause being set for trial on said first day thereof, plaintiff again appeared in said court and filed its application for continuance on the alleged ground' of the illness of one James J. Hitt, of counsel for plaintiff, a copy of which application is hereto attached and marked ‘Exhibit A’ and made a part of this return; that on said date defendants again appeared in court with their witnesses and counsel, and announced ready and demanded trial; that said defendant, Rich, had again, as the respondent judge of said court was then credibly informed, and as he then and now verily believes, come from Clovis, New Mexico, under the same. circumstances as before, to Lamar, Barton county, Missouri, for the sole purpose of attending the trial of and defending said action; that again over the protest of defendants’ counsel and after statement of the foregoing facts, in opposition thereto by them, this respondent as judge of said Barton Circuit Court, sustained plaintiff’s said application for continuance, by the conditional order therefor, hereinbefore mentioned and set out in relator’s petition, and then and there in an audible tone announced the order and docket entry from the bench; that J. B. McGilvray, attorney at law, presented said application to the court on behalf of plaintiff, was present in court when the court announced its decision on said application, including the condition to the order, that plaintiff should pay the costs of that term ten days before the next term and on plaintiff’s failure to do so the action stood dismissed, the defendants’ counsel then objecting to said order and insisting that said cause should be dismissed for want of prosecution;that this respondent then made it plain in the presence of said J. B. McGilvray, so appearing for plaintiff and presenting to the court plaintiff’s said application for continuance, what the court’s action was on the application, and again publicly announced that said order must be complied with or the case would stand dismissed, and that plaintiff and plaintiff’s counsel then and there had’due notice of the action of the court, by public announcement and order made in the docket, in sustaining said application for continuance and the condition upon which same was granted.
“Respondent further states that'plaintiff did not comply with said order.
“This answer is further supported by the affidavits of H. W. Timmonds, J. D. Harris and R. E. Casement, hereto attached and marked Exhibits 1, 2 and 3, respectively.
“Wherefore, respondent alleges that he has fully performed his duty in the premises, and prays that he be discharged with his costs. ’ ’

The return is duly verified by Judge Thurman.

“Exhibit A,” attached to said return, is a copy of plaintiff’s application for a continuance filed on January 10, 1910, on the ground that James j. Hitt, the principal attorney for the plaintiff, was so sick that he was confined to his house, and it was impossible for him to attend that session of the court, which application was supported by a certificate of a physician, and further stated that PI. H. McCluer, who was associated with said James J. Hitt, but was not familiar himself with all the facts in the case, was not prepared to properly try the same, and was unable in the short time since said James J. Hitt was taken sick to properly prepare for said trial.

The following affidavits are attached to such return, and made a part thereof, to-wit (formal parts omitted):

“H. W. Timmonds, of lawful age, being first duly sworn, on his oath states that he is a duly licensed and practicing attorney at law, residing at Lamar, Missouri, and was one of the attorneys of record for the defendants in the case of the Spring River Electric Power Co. v. Mink et al., heretofore pending in the Barton Circuit Court; that said cause came to said Barton Circuit Court on change of venue from the Jasper Circuit Court on the 27th day of November, 1905., on plaintiff’s application; that said case ever since thereafter pended in the Barton Circuit Court unprosecuted by plaintiff; that defendants in said case prepared for the trial of said suit at the September term, 1909, of the Barton Circuit Court, having taken out their subpoenas for their witnesses, and appearing in said court on the first day thereof with their witnesses prepared for trial; that the defendant, Albert Eich, had come from Clovis, New Mexico, for the sole purpose of attending the trial of said case and testifying therein as a witness in behalf of defendants, said Eich being a material witness in their behalf in the trial thereof; that when the respondent, Berry G-. Thurman, called said case for trial in its regular course on the docket of said court, plaintiff appeared therein and made application for a continuance on the alleged ground of surprise at defendants’ answers filed in said case on that day; that thereupon respondent stated that said case would be reset for trial at a later day of said term, and announced a continuance in accordance therewith; that thereafter, and on the same day, being the first day of' said term, respondent herein at the application, instance and request of plaintiff continued said case over the term; that defendants’ counsel protested against respondent herein granting a continuance over the term, stating to respondent at the time that defendants had gone to the expense of preparing for trial and bringing the defendant Rich from Clovis, New Mexico, for the sole purpose of said trial, and that the defendants were desirous of having said case disposed of at said term; that the respondent at the time of continuing said case then and there admonished plaintiff’s counsel that unless said case was tried at the then next term of said court the same would he dismissed for want of prosecution ; that at the next term of said court, being the January, 1910, term thereof, defendants again prepared for trial, took out subpoenas for their witnesses, and again had defendant Rich come . from Clovis,. New Mexico, for the sole purpose of attending the trial of said case and testifying therein in behalf of himself and his co-defendant, he being a material witness for them in the trial of said case; that said case was set for trial on the 'first day of the said January, 1910', term of said court; that when said case was called by respondent in its regular course on the docket of said court,- defendants in said suit announced ready for trial and demanded a trial thereof, desiring to dispose of said case at said term; that thereupon plaintiff appeared in court and again filed an application for continuance, this time based upon the illness of James J. Hitt, one of the attorneys for plaintiff in said case; that said application showed upon the face thereof that H. H. MeCluer was an attorney of record for plaintiff in said case; that defendants opposed the application for continuance, stating to respondent herein the fact of their preparation for said trial as aforesaid; that respondent, upon taking up said application and hearing the arguments of counsel thereon, sustained the same on condition, and ordered that the case be continued at plaintiff’s cost, and that the costs of the term be paid by plaintiff ten days before the next April, 1910, term of said Barton Circuit Court-, and on plaintiff’s failure to pay the costs on the aforesaid terms the said suit stood dismissed; that J. B. McUilvray, attorney at law, appeared in the said Barton Circuit Court, at said January term, 1910', and presented said application for continuance for the plaintiff, and was present in court when the respondent announced his decision on said application; that respondent, in so doing, then and there, in a audible tone, announced the order of continuance with the condition thereof made in sustaining said application; that after entering the minutes of said order on the judge’s docket, respondent thereupon, while said J. B. McGilvray, attorney as aforesaid for plaintiff, was present in said court, read the entry so made on said judge’s docket in an audible tone of voice, and made public announcement of the order made as aforesaid, and the docket entry therein, the defendants’ counsel at said time insisting that said case should be dismissed by respondent for want of prosecution. Affiant further states that none of the witnesses for defendants, nor either of the defendants, .resided in Barton county at any of the times aforesaid.”
“J. D. Harris, of lawful age, being first duly sworn, on his oath, states that he is a duly licensed and practicing attorney at law at Carthage, Missouri, and one of the attorneys of record for defendants in the case of the Spring River Electric Power Company v. Mink et al., heretofore pending in the circuit court of Barton county, Missouri; that said case was originally instituted in the circuit court of Jasper county on the 31st day of May, 1905, and on the 27th day of November, 1905, was removed on plaintiff’s application on change of venue to the circuit court of Barton county, Missouri; that said case thereafter remained on the docket of said Barton Circuit Court without due prosecution thereon on the part of the plaintiff and without effort on plaintiff’s part to bring the samé to trial; that term after term of said Barton Circuit Court the respondent, Berry G. Thurman, repeatedly warned counsel for plaintiff that unless plaintiff was ready for trial and tried said case at the then next term of said court same would be dismissed for failure to prosecute said suit; that during the latter part of August, 1909, James J. Ilitt, attorney of record for plaintiff in said case, notified affiant, as defendants’ attorney, that plaintiff'would be ready for trial and would try said case at the then next September term of said Barton Circuit Court, to be held on the 13th day of September, 1909; that, relying on said representation so made by plaintiff’s said attorney, defendants prepared for the trial of said case at said September term, caused their witnesses to be subpoenaed therefor, and this affiant wired defendant Albert Rich at Clovis, New Mexico, where said Rich was then and has since been in business, the said ease stood for trial at the said September term of said Barton Circuit Court, and directed bim to come to Lamar, Missouri, for the purpose of attending the trial thereof and testifying therein as a witness in said case in behalf of himself and his co-defendant; that in reliance on the statement of plaintiff’s said counsel as aforesaid, so communicated to him by counsel for defendants, defendant Rich came to Lamar to attend the trial of said case, defendants having their witnesses in readiness to proceed with the trial thereof; that when said case was duly called by respondent for trial, the defendants having so prepared therefor announced ready and demanded trial of said case, but thereupon plaintiff refused to go to trial, and filed it's application for a continuance on the alleged ground of surprise at defendants’ amended answers; that respondent thereupon stated that said case would be reset for trial on Friday, the 17th day of September, of said September term of court, and announced a continuance of the case until that day; that thereafter, and on the same day, being the first day of said term, counsel for plaintiff urged that plaintiff could not get ready for the trial of said case at said September term, assigning as reason therefor that J. L. Morton was a material witness for plaintiff in the trial of said ease, and claiming that the whereabouts of said witness was unknown to plaintiff and its counsel at the time, and on that account they were unable to secure his presence at that term; that defendants opposed the continuance of said case over the term, alleging their preparation for trial, and the bringing of said Rich from New Mexico' for the sole purpose thereof, and insisted that the said case be tried during said September term of court; that notwithstanding the inconvenience occasioned defendants therein, respondent at the instance and request of plaintiff, and over defendants’ protest, ordered said case continued to the then next term of said court, respondent then and there admonishing plaintiff’s attorneys that the ease must be tried at the said next term of court or the same would be dismissed for want of prosecution.
“Affiant further states that on December 4, 1909, he received a letter from James J. Hitt, attorney for plaintiff in said case, hereto attached and marked Exhibit A, and thereafter, on December 16, 1909, received a further communication from said James J. Hitt, hereto attached and marked Exhibit B, both referring to said suit at Lamar, in which said communications plaintiff’s said attorney notified defendants that said case would stand for trial on the first day of January term, 1910, and therein defendants were warned to be ready for said trial; that, relying upon the statements so made by plaintiff’s counsel, and desiring themselves to have said case disposed of, defendants again took out subpoenas for their witnesses and made all due preparations for trial, said Rich again coming from Clovis, New Mexico, for the sole purpose of attending the trial of said case and of testifying therein as a witness in his own behalf and that of his co-defendant, said Rich being a material witness in the trial thereof; that after defendants, had gone to the expense of preparing for said trial, as aforesaid, and after said Rich had come from Clovis, New Mexico, for the sole purpose aforesaid, affiant received further communication from F. O. Chesney, the general manager of plaintiff corporation, dated January 7, 1910, hereto attached and marked Exhibit C, notifying defendants that plaintiff would again file application for continuance on the ground of the illness of Mr. Hitt, one of counsel for plaintiff in said case, and stating that Mr. MoCluer, who was also of counsel in said case, disliked to try the same without the assistance of Mr. Hitt; that the said Mr. McCluer had for a long time theretofore been an attorney of record in said case and had represented the plaintiff therein; that said communication came to defendants at a time too late to stop their witnesses in said case, and that defendants appeared in said Barton Circuit Court on the first day of the January term, 1910, said case being set for trial on that date; that when said case was duly called by respondent, defendants announced ready for trial, having prepared therefor as aforesaid under the warning received from plaintiff’s counsel on the said 16th day of December, 1909, and demanded trial of said case; that plaintiff then appeared with its application for continuance, basing said application on the ground of the illness of said James J. Hitt, one of the attorneys for plaintiff, and that although said application showed that plaintiff had other able counsel representing it in said case, respondent herein, over the protests of defendants, and after statement of the foregoing facts to respondent by defendants’ counsel in opposition to said continuance, said respondent sustained said application on the condition that the plaintiff should pay the costs of that term ten days before the April, 1910, term of said court, and that unless the costs were so paid by plaintiff said case should stand dismissed; that respondent, then and there, in an audible tone, announced the order so made in the presence and hearing of J. B. McGilvray, attorney at law, who was there present presenting said application to the court on behalf of plaintiff; that while said J. B. McGrilvray was there present, and after the respondent had entered the terms of said order on the court’s docket, he then read the docket entry so made, in an audible tone of voice, while said J. B. Mc-Grilvray was present in said court, and made public announcement of the order so made.
“None of the witnesses for defendants, nor either of the defendants, at any of the times aforesaid resided in Barton county, Missouri.
“This affiant further states that his letter addressed to James J. Hitt, as attorney for plaintiff in said case, attached to plaintiff’s petition herein and marked Exhibit B, was written and mailed to said Hitt on December 31, 1909, in obedience to an oral understanding had between affiant and'said Hitt that if affiant had said files and papers in his office he would produce the same to be used on the trial of said" case at the January, 1910, term of said Barton Circuit Court; that at that time this affiant was assured by said Hitt that said case would be for trial at said term, and for all that affiant could then foresee said case would be regularly disposed of at that time, and that said letter was not written with a view of or with any knowledge.that said case would be pending in the Barton Circuit Court as long as the April term, 1910, thereof, and that nothing was intended or understood in said letter to mean anything else but that said papers would be produced in said Barton-Circuit Court at the said January term, 1910, thereof, and that, as a matter of fact, this affiant did -at that time have said papers in said court accessible to plaintiff’s counsel therein, but that at said term plaintiff refused to go to trial under the circumstances as herein aforesaid; that said letter was written in response to a proposed stipulation sent affiant by H. H. McOluer and J. J. Hitt, as attorneys for plaintiff, and signed by them, which said stipulation is hereto attached and marked Exhibit D; that when plaintiff’s said counsel asked affiant to sign said stipulation with them, the affiant then stated lie was under the impression that the original files in said case in said stipulation referred to-, and the papers therein called for, were at the time thereof in affiant’s office, and that if, upon investigation, he found said papers thereat, then he would -agree to produce the same at the trial of said case in the said Barton Circuit Court as therein contemplated and as herein aforesaid; it being noted that said stipulation called for the production of said papers at the January term, 1910, of said Barton Circuit Court.”

Exhibit A to Harris affidavit is as follows:

“Kansas City, Mo-., December 4,1909.
“J. D. Harris, Esq., Carthage, Mo.
“Dear Sir: I write you regarding the two cases against the Mink Estate, one at Joplin, the other at Lamar. I want to know if you are very anxious to try these cases at the January term, or if you would be willing to continue the same till the next term? Mr. Chesney is anxious to make a trip to California, and if he goes he would not be able to be present during the month of January. I do not know if he will go for sure, and it depends largely upon the agreement to continue these cases. Let me know if you will continue them, if he does conclude to go- west. I am not just prepared to state that he will want to continue, and cannot answer that query, till I hear from you, then we will decide if we want to continue, so please let me hear from you at your earliest convenience, and greatly oblige,
“Tours truly, James J. Hitt.”

Exhibit B to Harris affidavit is as follows:

“Mr. J. D. Harris, Carthage, Mo.
“Kansas City, Mo., December 16, ’09.
“Deaf Sir: Some time since I wrote you regarding the two Mink cases, one at Lamar, the other at Joplin. I stated that Mr. Chesney desired to make a trip to the West and wishing to know if you were willing to continue these cases for the term. As I have not heard from you Mr. Chesney will be compelled to make other arrangements, and postpone his trip west, and I now desire to notify you that we expect to be ready for trial in the Lamar case on the first day of January term, which commences, I understand, on the second Monday in January. . I notify you now so that you can be prepared and ready for trial at that time.
“Yours respectfully, James J. Hitt.
“P. S'. Regarding the Joplin case, Mr. Hubbert will attend to that. I suppose he will be ready for trial. However, I have nothing to say in that case and you may consult him.
“ J. J. Hitt.”

Exhibit C to Harris affidavit is as follows:

Kansas City, Mo., Jan. 7, 1910.

“Mr. J. D. Harris, Carthage, Mo.
“Dear Sir. As I telephoned you this morning Mr. Hitt is quite sick at home in bed with valvular trouble of the heart and the doctor says he can’t get out for several days or weeks, and we will furnish the court with a certificate and affidavit from the doctor Monday, and ask for a continuance. Mr. MeCluer says he can’t get down Monday and he don’t want to try the case without Mr. Hitt, so you had better stop your witnesses and I will ours. I wish that we could arrange so that we would not have to come down ourselves.
“Yours truly, F. O. Chesney.”

Exhibit D to Harris affidavit is as follows:

“In the Circuit Court of
Barton County, Missouri.
January Term, 1910.
The Spring River Electric
Power Company, Plaintiff, v.
H. J. Mink et al.
“It is hereby stipulated and agreed by and between the plaintiff and defendants that a jury may be, and with the consent of the court, is hereby waived, and this cause may be tried by the court without the intervention of the jury.
“It is further stipulated and agreed that the original file in Case'Number 7065, in the Appellate Court of Kansas City, Missouri, of H. J. Mink against Frank O. Chesney, containing a copy of the original pleadings in the case of II. J. Mink against Frank O. Chesney tried before Hugh Dabbs, Judge of the Circuit Court at Carthage, Missouri, may be read as evidence in this case, the defendants herewith waive all objection to the introduction of said testimony on account of not being the original and not being properly certified, hereby reserving the right to object to the introduction of any or all said transcripts that would -be available were the -certified copy under the hand and seal of the clerk of the circuit court at Carthage.
“H. H. Me Clues & J. J. Hitt, Attys. for Plaintiff.
Attys. for Defendant.”

“Exhibit 3,” attached to said return and made a part thereof, being the affidavit of R. E. Casement, omitting caption, is in words and figures as follows:

“R. E. Casement, of lawful age, being first duly sworn, on his oath states that he is now, and has been for the last ten years, clerk of the Barton Circuit Court; that the case of the Spring River Electric Power Company vs. Mink and Rich came on change of venue to said Barton Circuit Court from the circuit court of Jasper county on plaintiff’s application on the 27th day of November, 1905; that case pended on the docket of said court without any due prosecution thereof, or apparent effort to bring the same to trial on the part of the plaintiff; that said case was set for trial on Monday, the first day of September, 1909', term of the said Barton Circuit Court; that when said case was called by respondent for trial in its due order on the docket of said court, defendants appeared therein with their witnesses and announced ready and demanded trial thereof; that thereupon plaintiff appeared in said case by its. attorneys and-filed its application for a continuance, based on the alleged ground of surprise at defendants’ amended answers filed therein that day; that thereupon respondent stated that said case would be reset for trial 'at a later day in said term, and announced a continuance of said case in accordance therewith; that thereafter, and on the same day, being the first day of said term, respondent herein at the application, instance and request of plaintiff continued said cause over the term; that defendants’ counsel protested against respondent herein granting a continuance over the term, stating to respondent at the time the fact that defendants had gone to the expense of preparing for trial, and of bringing the defendant' Rich from New Mexico for the sole purpose of said trial, and that defendants were desirous of having said case disposed of at said term; that respondent at the time of continuing said- case then and there admonished plaintiff’s counsel that unless said case was tried at the then next term of said court the same would be dismissed for want of prosecution; that at the said January term of court, said ease being set for trial on the first dav thereof, the defendants again appeared therein with their witnesses; that when said case was called for trial in its due course on the docket, defendants announced ready and demanded trial therein; that thereupon plaintiff again appeared with its application for a continuance, this time basing the same upon the illness of James J. Hitt, one of the attorneys for the plaintiff therein, claiming and alleging that although it had other counsel in said case that said other counsel did not desire to proceed with the trial of said case without the presence of James J. Hitt thereat; that defendants’ counsel protested against the granting of said continuance, calling the respondent’s attention to the fact that they had gone to the expense of preparing for trial, and to the fact defendant Albert Rich had come from Clovis, New Mexico, for the sole purpose of attending the trial thereof and testifying as a witness therein; that the respondent herein, upon taking up said application and hearing the arguments of counsel thereon, and the statement made as aforesaid, sustained said application by taxing the costs of said term against the plaintiff, and ordering that the case would be continued on its said application on condition that plaintiff pay the costs of said term ten days before the next April term, 1910, thereof, and that upon plaintiff’s failure to pay the costs as aforesaid said suit stood dismissed, the defendants’ counsel at the time protesting against the granting of any continuance upon any terms therein and asking the respondent to dismiss said case for want of-prosecution; that at the time said action was taken by the court on said application, J. B‘. MeGilvray, an attorney at law, who presented said application for the plaintiff, and who was representing it therein, was present in the court room and standing within a few feet of the judge’s bench; that respondent announced his. decision therein, and the order so made, in an audible tone of voice, easily to be heard throughout the entire court room; that after entering the minutes of the order on the judge’s docket, respondent again announced the terms of said order by reading said minutes in a distinct and audible tone of voice, and making public announcement thereof; during all said time the said J. B. McGilvray was- then and there present in said court room and was participating in the disposition of said application for continuance, and made no objections, and saved no exception to the action of the court thereon.
“Affiant further states that it is not true that he, as clerk of the said court, undertook to dismiss said case on the 4th day of April, 1910, or at any other time; that on said date he merely made on the margin of the judge’s docket a pencil notation as a mere memorandum for the convenience of the court that said case stood dismissed, not intending thereby to undertake to make an order of dismissal thereof.”

I. Counsel for relator insist that the respondent has no power to continue upon terms the- case of the Spring River Electric Power Company v. Mink et al., pending in the circuit court of Barton county.

The order of continuance was made upon condition that the plaintiff in that case should pay the costs of that term ten days before the next term of the court; and if not so paid, the cause was to stand dismissed for want of prosecution.

In the consideration of this insistence, it should be borne in mind that this case had been pending in the circuit court of Barton county without serious attempt on the part of the relator, as shown by the return, to bring it to trial, for a period of about five years. The witnesses for the defendants were all non-residents of the county, and some of this State, and one of the defendants, who was also a material witness, was a resident of New Mexico. This made it very expensive and exceedingly inconvenient for defendants to prepare and get ready for trial. It should also be remembered that the cause was set for trial at the previous term of the court, at which time the defendants with their nonresident witnesses were in attendance, and announced ready for trial; but the cause was continued on application of relator over the objections of the defendants, at the cost of the former. The plaintiff contended that it was not liable for and refused to pay the costs of bringing non-resident witnesses to Lamar, the place of trial. Whether that contention was sound or unsound was immaterial ; nevertheless, if sound, it constituted an additional reason why the trial court should have been more stringent in bringing the cause to trial. In passing, however, it should be observed that the order of continuance did not reqiiire the plaintiff to pay any illegal or improper costs; and if any such were taxed against the plaintiff, the law makes ample prevision for its relief therefrom.

The gravamen of relator’s complaint is, that the trial court had no power to make the provisional order of dismissal, or, in other words, to continue tire case upon terms., which were that the plaintiff pay the costs of the then present term ten days before the first day of the next term, and in default thereof the cause would stand dismissed for want of prosecution. We are unable to lend our assent to that contention.

In discussing the power of the court to impose conditions on granting continuances, the author, in 9 Cyclopedia of Law and Procedure, page 151, says:

“A. The court may in its discretion, where the justice of the case so demands, impose terms or conditions upon the granting of a continuance. Thus it may re<rqire that the applicant give security for carrying out the judgment or decree rendered, that the adverse party be allowed to take depositions of a witness for •which the court is without authority to issue a commission, that the death of the applicant (whose health is in a precarious condition) before the term to which the cause is continued shall not abate the suit, that the applicant give bail in the action, that the applicant confess judgment for a snm admitted to be due, that tbe opposite party be allowed to take depositions without making a preliminary affidavit, that a deposition may be read, although informally taken, or that a rule be granted to try the cause at the nest term or the applicant suffer a non prosequitur.
“B. It is a usual condition imposed upon the applicant that he shall pay costs where a continuance is granted in his favor. In many jurisdictions the matter of imposing costs as a condition of granting a continuance is by special statutory provision made discretionary with the court. The court has no power to make a direct order for the payment of costs, but can only impose their payment as a condition of granting the application.
“0. By accepting a continuance, the party accepts the terms or conditions imposed by the court on granting the continuance; and this is so, although the continuance is in fact unnecessary, or although some of the costs imposed as a condition of the continuance are improper. ’ ’

And in 4 Ency. Pl. and Practice, p. 888, XII, it is said:

1. Independently of statutory authority, a court having a discretionary power to grant or refuse a continuance has power to impose terms as a condition of granting it; and where a statute confers a discretionary power to require the payment of costs, it does not preclude the imposition of other terms. The statutes usually provide substantially that such terms may be imposed as to. the court shall seem proper.
“2. The payment of costs by the applicant is the most usual condition imposed upon granting an application for continuance; but the court may require a confession of judgment for the uncontested part of plaintiff’s demand, or security for the payment of whatever judgment may finally be rendered, or the dispensing of statutory requirements in taking depositions, or exact a stipulation that the death of the applicant shall not abate the suit, or restrict the evidence to be produced thereafter, or impose such other terms as are not palpably unreasonable or unjust.
“3. It is only in cases in which there is a clear and manifest abuse of the discretion with which the trial court is invested that an appellate court will review its action in the imposition of terms; and where a party accepts a continuance he thereby assents to the terms annexed thereto, and cannot afterwards complain that the court exceeded its power.”

In support of the rules before announced both authors cite numerous authorities.

A similar question came before this court in the case of Street v. Bushnell, 24 Mo. 328, and on page 329, Ryland, J,, in speaking for the court, said: “This is an action of slander, for words spoken of the plaintiff by the defendant. Upon the trial, the plaintiff failed to prove the words as he had charged them to have been spoken; but proved words which he considered actionable. He therefore moved the court for leave to amend his petition, so as to make it conform to the proof in his power. The court granted this motion upon terms, which were that the plaintiff should pay all the costs already incurred except the costs of the commencement of the suit. The plaintiff declined amending on those terms, and excepted to the decision of the court in refusing the leave to amend on other than the ordinary terms. The plaintiff then took a non-suit. He filed his motion to set aside this nonsuit, which being overruled, he excepted, and brings the case here by appeal. ... We are satisfied that the terms offered to the plaintiff below were proper, and were as favorable as he had a right to demand; and having declined to accept, them, he must be left where he voluntarily placed himself. ”

In Todd v. Thompson, 2 Dall. (Pa.) 105, the Supreme Court of the United States, in the discussion of this question, said:

“This cause'being marked for trial, it was continued by the plaintiff; whereupon the defendant’s counsel moved for a rule to try at the next term, or non pros. This, however, was opposed, the plaintiff’s counsel alleging that there was no default on his part, as the procrastination arose in fact from the absence of a material witness, and the late arrival of a record from New Jersey, which was so imperfectly exemplified that it could not be offered in evidence. To this it was answered, that there had been no subpoena taken out for the absent witness; and that as the action had been pending for more than two years, there was evidently a laches in not obtaining the exemplification sooner.
“By the court: It is certainly a great default, that an earlier application was not made for the exemplification; and that instructions were not given to some person to see that it was regularly made out. On that ground alone, therefore, the motion must be granted. But even if the plaintiff had not been guilty of a laches.; if it was a misfortune, and not negligence, that had prevented the seasonable arrival of the record, we should still doubt the propriety of refusing the rule. ’ ’

In Rhea v. Tucker, 56 Ala. 450, it is held, that a party applying for a continuance, by accepting the same, also accepts the conditions imposed by the order that the payment of costs within a certain time shall be a condition precedent to his further defense of the suit, or that his pleading or answer be stricken from the files, and judgment given his adversary. In so holding, the court, on page 453, said:

“In Waller v. Sultzbacher, 38 Ala. 318, we said: 'One of the conditions upon which the defendant obtained the continuance at the fall term, 1860, was that, if the costs were not paid in ninety days after the adjournment of the court, the defendant’s plea should be stricken from the file, and the plaintiffs have judgment by nil elicit, with inquiry. The defendant did not question the right of the court to impose these terms, but accepted the same. The-order of the court became thereby an agreement of record between the parties, and the defendant cannot complain that it was enforced against him. The record shows that the costs were not paid within the ninety days; and accordingly the court did not err in striking the defendant’s plea from the file, and giving the plaintiff judgment by nil elicit/
‘ ‘ The rule declared above has been announced, in substance, in many of the decisions of this court, on that and kindred questions. They rest on two well-recognized principles; the power of the court to impose conditions, in promotion of the ends of justice, on which it accords the exercise of discretionary powers; and the binding efficacy of agreements, entered of record, which are implied from the acceptance of the order with the conditions annexed. . . .
“We are aware that in what we have said above we are treading on delicate ground. Discretionary powers may be abused. Still, they do, and must exist; and there is. rarely any redress from their abuse. The safety -of the public does and must rest in the strong sense of the right, which should always preside in such administrations.
“The present is a suit in chancery; and the chancellor, at the July term, 1872, granted to the defendant, W. H. Rhea, a continuance of the cause-, and further ‘ordered and adjudged that the- respondent, W. H. Rhea, pay all the cost now due in this cause, . . . and that the payment of the cost by the said W. H. Rhea, before the next term of this court, is hereby made a condition precedent to his making further defense to complainants’ suit.’ The defendant accepted the continuance, and must be held to an implied agreement to observe, keep-, and submit to the conditions therein imposed. We can perceive no reason for laying down a rule for the construction and enforcement of conditions imposed in granting continuances in' chancery, other and different from the rule as to conditions in continuances at law, declared in Waller v. Sultzbacher, supra. We therefore hold that, in refusing to allow W. H. Rhea to defend further, because he had failed to pay the costs, the chancellor did not err.”

The Supreme Court of Nevada, in the case of Brown v. Warren, 17 Nev. l. c. 421, in speaking through Belknap, J., said:

“The other objection relates to the authority of the court to impose other terms than costs as a condition for granting the continuance. The statute does not authorize other terms than costs to be imposed. But in the reports so many cases may be found in which the power of imposing conditions upon a party upon granting his application for a continuance has been exercised, that the practice must be considered established. In Ames v. Webber, 10 Wend. 576, where there was reason to apprehend that the defendant might die previous to the next circuit, the court imposed as a condition of continuance that defendant should stipulate that his death should not abate the suit.
“In Brooklyn Oil Works v. Brown, 38 How. Pr. 451, the continuance was granted on condition that defendant stipulated to allow an inquest on the next adjourned day if they should not then he ready to proceed with the trial.
“In Booth v. Whitby, 5 Hill 446, the court of common pleas ordered a cause to be postponed for the term on the defendant’s application, upon payment of costs to plaintiff within twenty days, or that he have judgment, etc.; it was held that unless the costs were paid, pursuant to the order, the plaintiff might perfect judgment.
“In rendering its decision the Supreme Court employed language applicable to the present case: ‘If the defendant did not like the terms, he should not have taken the rule. Having taken it, and' then neglected to pay the costs, it was very proper for the court to enforce the order by rendering’ judgment for the plaintiff.’ [Edwards v. Lewis, 18 Ala. 497; Gowen v. Jones, 20 Ala. 128; Brown v. Murray, 4 Dowl. & Ryl. 830; Rannells v. State, 18 Ind. 256; Walker v. Greenlee, 1 Dev. Law (N. C.) 367; Decker v. Judson, 16 N. Y. 439; Cox v. Railroad, 63 N. Y. 414.] ”

The same rule is announced in the case of Booth v. Whitby, 5 Hill (N. Y.) 446. The syllabus, which bespeaks the substance of the opinion, reads as follows: “Where a court of common pleas ordered the trial of a cause to be postponed for the term on the defendant’s application, upon payment of costs to the plaintiff within twenty days, or that he have judgment, etc.; held that, unless the costs were paid pursuant to the order, the plaintiff might perfect judgment. ’ ’

Our reports are full of cases showing where this court and the courts of appeals have sustained the trial court where the order of continuance imposes terms other than for the payment of costs, as well as for the payment of costs. [See Larimore v. Bobb, 114 Mo. l. c. 450; Street v. Bushnell, supra; Pitkin v. Flagg, 198 Mo. 646.]

In the case at bar counsel for relator, by accepting the conditional order of continuance, also thereby accepted the condition that the cause should stand dismissed if the costs of the term were not paid ten days before the first day of the next term of the circuit court of Barton county. Under the circumstances of this case, as disclosed by the record, we are unable to say that the trial court abused its discretionary power, either by imposing the terms mentioned, or in dismissing the cause for plaintiff’s failure to comply with those terms.

This insistence is, therefore, ruled against the relator.

II. Counsel for respondent insist that the peremptory writ of mandamus should he denied, and the alternative writ heretofore issued he quashed, for the reason that relator had an adequate remedy by appeal or writ of error, and for that reason mandamus will not lie.

The law is well, settled in this State, that an appeal will lie from an order dismissing a cause. [Pitkin v. Flagg, supra, 646; Crane Co. v. Hawley, 54 Mo. App. 603; Williams v. Judge of Common Pleas, 27 Mo. 225.]

In the Larimore-Bobb case, the suit had been dismissed by the circuit court, and the plaintiff filed a motion therein to set aside the order of dismissal and to reinstate the cause, which motion was, by the court, overruled. Thereupon, the plaintiff appealed from said order to this court, which court took cognizance of the case, and affirmed the order of the circuit court dismissing the appeal.

In the case of State ex rel. v. Mosman, 112 Mo. App. 540, the circuit court dismissed an appeal from a justice of the peace for the reason that the latter had no jurisdiction to hear the cause. In that case the court of appeals held that the plaintiff had adequate and exclusive remedy by appeal, and that mandamus would not lie to compel the circuit judge to reinstate the cause and proceed with the trial.

In Williams v. Judge of Common Pleas, supra, the relator recovered a judgment in the court of common pleas against the Central Agricultural Society, and execution was issued thereon. At the next term of the court the defendant filed a motion therein to quash the execution and to set aside the judgment so rendered. This motion was by the court sustained. In discussing that question, this. court, on page 227, said: “The effect of the order made at the January term quashing the execution and vacating the judgment of the previous term, was to dismiss the suit, and it therefore operated as a final judgment, on which a writ of error will lie. It is a general rule that a mandamus will not issue unless the party asking it has a clear right and no other specific legal remedy. It will not be granted to bring under review the proceedings of an inferior court on the ground of error, and therefore it will be refused in a case in which a writ of error will lie, or where the party can be redressed by appeal. [6 Bacon’s Abr., tit. Mandamus, C; Hoyt, ex parte, 13 Pet. 279; Nelson, ex parte, 1 Cow. 417; People v. Judges of Dutchess, 20 Wend. 658; Gordon, ex parte, 2 Hill 363; Reading v. Commonwealth, 11 Pa. St. 196; James v. Commissioners, 13 Pa. St. 72 ; Marshall v. State, 1 Smith 17.] ”

This brings us to'the consideration of the question, will the mandamus he where the, party aggrieved has an adequate remedy by appeal or writ of error Í That question is answered in the negative by the following adjudications: Williams v. Judge of Common Pleas, supra; State ex rel. v. Mosman, supra; State ex rel. v. Lubke, 85 Mo. 338; Blecker v. Commissioner, 30 Mo. 111; State ex rel. v. McKee, 150 Mo. 233; State ex rel. v. Fort, 180 Mo. l. c. 109; State ex rel. v. McCutchan, 119 Mo. App. l. c. 76; State ex rel. v. Field, 107 Mo. l. c. 450.

In the case of State ex rel. v. McKee, supra, this court, in speaking through Sherwood, J., at page 243, said: “Furthermore, the writ of mandamus cannot be made to perform or to usurp the functions of an appeal or writ of error. When the matter is reviewable by appeal or writ of error, and where the party may obtain redress in the ordinary course of judicial proceedings, mandamus will be refused. It does not lie to correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them. And the fact that the person aggrieved has, by neglecting to pursue his statutory remedy, placed himself in such a position that he can no longer avail himself of its benefit, does not remove the case from the application of the rule, and constitutes no ground for interference by mandamus. ’ ’

In the Field case, supra, this court, on page 450, said: “It cannot be tolerated that a party may invoke the extraordinary writ of mandamus every time the judge makes an error in his opinion. It was never designed this writ should usurp the function of a writ of error or appeal.”

The Kansas City Court of Appeals in discussing this same question in the case of State ex rel. v. Mosman, supra, at page 549, said: “But we are of the opinion that the extraordinary. remedy here invoked should be denied, for the reason that the relator has an adequate — in fact, an exclusive — remedy under ordinary procedure. Relator assumes, a false premise in the conclusion that the respondent has refused to entertain any jurisdiction over the appealed ease. To the contrary, respondent did assume authority to dispose of it, heard the motion to dismiss, acted upon it, and entered a final judgment from which an appeal could have been prosecuted. Nowhere did he overstep the bounds of his jurisdiction, and all of his acts were judicial in their character.”

The Cyclopedia of Law and Proc., vol. 26, N. and 0., in treating the question of the use of mandamus as a remedy for reviewing the action of the court in dismissing an action, says; “As a general rule the action of the court with regard to dismissing an action is judicial and not ministerial, and will not be reviewed by mandamus, particularly. where there is an absolute remedy by appeal, or otherwise.” And “The reinstatement of a cause dismissed or disposed of is usually discretionary, not to be controlled by mandamus.”

According to the foregoing authorities, the relator had an adequate remedy by appeal or writ of error; and for the reasons before stated we are of the opinion that the peremptory writ of mandamus sbonld be denied. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. TEXAS PORTLAND CEMENT COMPANY v. MOSES N. SALE, Judge.
    In Banc,
    December 31, 1910.
    1. SERVICE OF PROCESS: On Domesticated Foreign Corporation: No Other Service Possible. The fact that unless the service of summons upon the clerk of a foreign corporation licensed, to do business in this State, “he being at the time in said defendant’s usual business office and in charge thereof,” is sufficient and valid, said company can obviate service altogether and there is no way to bring it into court in the particular case, is no reason for holding such service sufficient. The service must be good under the statute, or it is not good at all. The foreign 'corporation must in this State maintain a public office and "place “where legal service may be obtained upon it,” and if it fails to do that it can by proper proceeding be ousted.
    2. -: -: Return: Binding on All. The return of the sheriff is binding on all courts until amended by him; and the sufficiency of the service must be determined by the facts narrated in that return and by them alone.
    3. -: -: Upon Clerk. A foreign corporation having an office and doing business in this State must so maintain said office that “legal service may be obtained upon it;” and hence if the company places in charge of the office which it is required by law to keep in this State a man whom it denominates a “clerk,” then such clerk is an “agent” for the purpose of obtaining service of process upon such corporation. A return reciting that the writ was executed “by delivering a copy of the writ and petition as furnished by the clerk to R. M. Hatfield, clerk of said defendant, the Snow Steam Pump .Works, he being at the time in said defendant’s usual business office and in charge thereof. The president or other chief officers of said defendant could not be found in the city of St. Louis, at the time of service, said defendant, the Snow Steam Pump Works, being a foreign corporation, having an office and doing business in the city of St. Louis,” etc., is a sufficient and valid service of summons. A “clerk" is an “agent” within the meaning of the statute permitting the service in such case to be made “by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business.” In such case it will be presumed that the company placed said clerk in charge of the office as its agent to receive service of process.
    4. -: -:' Appearance: Waiver: Petition to Remove Cause to Federal Court. The filing of a petition in the State court by the foreign corporation to remove the cause to the Federal court is an entrance of appearance of said defendant, and a waiver of all objection to any defect in the sheriff’s return. And that must be the • ruling, although defendant’s petition recites that it appears “specially and for the sole and single purpose of presenting this petition for removal.”
    Mandamus'.
    Peremptory writ awarded.

      Edward D’Arcy and Percy Werner for relator.
    (1) The sheriff’s returns show a good service,, having been made on the defendants’ representative in charge of their offices. It is not necessary that service on a corporation be had on its general agent. Davis v. Southeastern Line, 126 Mo. 69; Newcomb v. Railroad, 182 Mo. 705. (2) The person who is in charge of defendant’s office at the time of service is the proper person to be served. Davis v. Southeastern Line, supra. (3) The object of the Legislature in providing for service on foreign corporations doing business in Missouri was “to render the service of summons as facile and effective as it already was on individuals and domestic corporations.” McNichol v. Mercantile Agency, 74 Mo. 457; McAllister y. Ins. Co., 28 Mo. 214. (4) It is the duty of a foreign corporation doing business in this State, to maintain a public office for.the transaction of its business, “where legal service may be obtained upon it. ’ ’ R. S. 1899, sec. 1024; R. S. 1909, sec. 3037. (5) The fact that the defendant corporations have appeared in court to object to the service shows that, as a matter of fact, information of the sendee was conveyed to them by Hatfield. Abbeville Co. v. Western Co., 85 Amer. St. (S'. C.) 896. (6) Service on an employee of a corporation in possession of its property is good. Saunders v. Nursery, 6 Utah, 431. (7) Service of this kind ‘ ‘ is founded in the necessity of the case.” Considerations of convenience and necessity underlie all judicial construction of statutes. Fanny v. State, 6 Mo. 142; 4 Bacon’s Abridgment, 652; Broom’s Maxims (8 Ed.), *185.

      Nagel & Kirby for respondent.
    (1) Mandamus will not lie to control a judicial act or compel a court to enter any particular judgment. .It lies only to compel the performance of a ministerial duty. State ex rel. v. Garesche, 65 Mo. 489; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Fort, 180 Mo. 97. (2) Mandamus will not lie where a court has not declined to proceed with a causé but has simply held the service of summons to be insufficient. State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Broaddus, 207 Mo. 107. (3) Mandamus cannot be used to perform the office of an appeal, and where the remedy by appeal is adequate, the mandmus will not lie. State ex rel. v. Lubke, 85 Mo. 338; State ex rel. v. Megown, 89 Mo. 156; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Rombauer, 125 Mo. 632; State ex rel. v. McKee, 150 Mo. 233. (4) In this case relator could have signified its intention to stand on the return as made and demanded a dismissal of the action, from which judgment it could have appealed and thus secured a review of the question of jurisdiction. -Gil'strap v. Felts, 50 Mo. 431; Bank v. Armstrong, 9'2 Mo. 265. (5) Statutes authorizing substituted service must be strictly construed, and everything must be inferred against the return which its departure from the statute will warrant. Blanton v. Jamison, 3 Mo. 52; Bank v. Suman, 79 Mo. 528;. Haley v. Railroad, 80 Mo. 112; Gamasehe v. Smythe, 60 Mo. App. 161; Cloud v. Pierce City, 86 Mo. 357. (6), The statute (sec. 570, R. S. 1899) differentiates between the manner of service on foreign corporations having an office and those not having an office'. In the first case, the service must be upon an officer or agent in charge of such office, while in' the other case, the service may be upon any officer, agent or employee — clearly indicating a distinction between agents and employees. (7) Defendants can be brought into court only by summons served in the proper manner. It is not sufficient that a copy of the summons reaches them in an unauthorized way. State ex rel. v. Myers, 126 Mo. App. 549; New-comb v. Railroad, 182 Mo. 706.
   GRAVES, J.

Relator seeks by mandamus to compel Hon. Moses N. Sale, one of the judges of the circuit court of the city of St. Louis, to proceed with a certain cause wherein the relator, Texas Portland Cement Company, a corporation organized and existing under the laws of West Virginia, is plaintiff, and the Inter.national Steam Pump Company, a corporation of New Jersey, and the Snow Steam Pump Works, a corporation of New York, are defendants. The action is one to recover $1,500,000 damages for breach of a certain contract in the petition fully described.

The history of the case both below and here is this: Relator filed its petition in the circuit court November 15, 1909, and had a summons issued to each of the defendants. These two instruments being placed in the hands of the sheriff of said city, he executed them in the following manner as shown by his return thereon:

- “Executed this writ in the city of St. Louis, Missouri, on this 15th day of November, 1909, by delivering a copy of the writ and petition as furnished by the clerk to R. M. Hatfield, clerk of said defendant, International Steam Pump Company, he being at the time in said defendant’s usual business office and in charge thereof. The president or other chief officers of said defendant could not he found in the city of St. Louis at the time of the service, said defendant, International Steam Pump Company, being a foreign corporation, having an office and doing business in the city of St. Louis and State of Missouri, at the time of service.
“Louis Nolte, Sheriff,
“By D. Kretschmer, Deputy.
“I further executed this writ in the city of St. Louis, Missouri, on this 15th .day of November, 1909', by delivering a copy of the same as furnished by the clerk to R. M. Hatfield, clerk of said defendant, the Snow Steam Pump Works, he being at the time in said defendant’s usual business office and in charge thereof. The president or other chief officers of said defendant could not he found in the city of St. Louis at the time of service, said defendant, the Snow Steam Pump Works, being a foreign corporation, having an office and doing business in the city of St. Louis and State of Missouri, at the time of service.
“Fee $2.00. Louis Nolte, Sheriff.
“By D. Kretschmer, Deputy.”

On December 18, 1909, each defendant appeared specially and filed a motion to quash the service. The motions are the same in language, and one will suffice. That of the Steam Pump Company reads:

“The International Steam- Pump- Company, one of the defendants herein, appearing specially and for the sole and single purpose of presenting this motion, moves the court to quash the service of the summons on the International Steam Pump Company for the reason that it appears from the return of the sheriff on said summons that said defendant has an office in the city of St. Louis, Missouri, and that said summons was served upon a ‘clerk’ of said defendant and not upon an ‘officer or agent’ thereof as required by the provisions of section 570', Revised Statutes of Missouri 1899.”

These motions were sustained by the circuit court May 26,1910, and on May 27th relator filed a motion to compel defendants to plead, answer or demur to relator’s petition. This motion the court overruled. Respondent did not refuse to permit the sheriff to amend his return. Nor did relator ask for alias process or take other steps than above indicated. June 28, 1910, an alternative writ of mandamus was issued by this court upon application of relator, to which Judge Sale has made full return, and from which returns- we have gathered the facts herein stated. Relator filed a motion for judgment upon the pleadings, so that the case stands here upon the admissions made in the return. Respondent Sale seeks the judgment of this court upon the merits, and to that end there is presented the sole question of the sufficiency of these returns. Other questions are discussed in the briefs, but were waived in the oral argument at request of respondent, who deemed the question presented upon the returns as a very important one to the circuit court of the city of St. Louis, where many such suits are pending and others being continuously brought. This outlines therefore the sole issue in the case. The chief bone of contention is the sufficiency of these words in the return: “R. M. Hatfielcl, clerk of said defendant ... he being at the time in said defendant’s usual business office and in charge thereof.”

Respondent contends that the service upon a “clerk” does not meet the demands of the statute; relator, contra.

This sufficiently states the case.

I. It is urged that if these defendants in the suit mentioned cannot be served in the manner indicated by the return of the sheriff, then they can obviate service of process entirely. This may be true, yet it will not make this service good, unless it is good under the statute. The statute has designated the manner of service and the service must comport with the reasonable intendment of the statute as expressed by its terms. If these corporations are doing business in Missouri by license of the State, as it appears from the record they are, there is a method of reaching them without doing violence to the statute pertaining to service of process.

A part of section 3037, Revised Statutes 1909, reads: “Every corporation for pecuniary profit formed in any other State, territory or country, before it shall be authorized or permitted to transact business in this State, or to continue business therein if already established, shall have and maintain a public office or place in this State for the transaction of its business, where legal service may be obtained upon it, and. where proper books shall be kept to enable such corporation to comply with the constitutional and statutory provisions governing such corporations; and such corporation shall be subjected to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the generals laws of this State, and shall have no other or greater powers. ’’

The foreign corporation must maintain an office where legal service may be obtained upon it, and to maintain such an office it must keep therein and thereat such a person as is designated by the statute pertaining to service of process, upon whom process may be served. If such corporation fail so to do it can by proper proceeding be ousted from its right to do business in the State because of this flagrant violation of the law. So that we are not impressed with the idea of relator’s suggestion as above mentioned. With this suggestion to the side we take up the real question next.

II.- That portion of the statute in which we are interested (E. S. 1900, sec. 1760; E. S. 1809', seo. 570) reads:

“A summons shall be executed, except as otherwise provided by law, either: .... or fourth, where defendant is a corporation or joint stock company, organized under the laws of any other State or country, and having an office -or doing business in this State, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent, or employee in any county where such service- may be obtained, and when had in conformity with this subdivision, shall be deemed personal service against such corporation and authorize the rendition of a general judgment against it.”

Certain portions of the above section have been omitted as they are not relevant to this contention.

These corporations had a place of business in this State and therefore came within the first portion of the paragraph, which requires the summons to be delivered to an officer or agent of the corporation. We can only discuss this question from the standpoint of the returns made by the sheriff. In this proceeding, as well as in the proceeding in the lower court, his .returns are binding upon all parties. If false he is liable upon his bond, but the statements therein are the facts as to the service, so far as our consideration of the matter goes. Prom the record before us, it appears that the sheriff refused to amend his return, showing that he thought that there was a difference betwen the term “agent” as used in the statute, and the term “clerk” as used in his returns. The circuit court has taken the same view of it.

Ordinarily speaking there is a difference between “clerk” and “agent.” This difference is discernible by the following definition of “clerk” from the Cyclopedic Law Dictionary, p. 157: “A person in the employ of a merchant, who attends only to a part of his business, while the merchant himself superintends the whole. He differs from a factor in this that the latter wholly supplies the place of his principal in respect to the property consigned to him. [Pardessus, Dr. Com., note 38; 1 Chit. Pr. 80; 2 Bouv. Inst., note 1287.] A general name for salesmen, bookkeepers, amanuenses, and other employees of that class. A person employed in an office, public or private, for keeping records or accounts. ’ ’

If it were an original proposition in this State much might be said for the contention made by respondent. But as we take it, to this court it is not a new contention. In the case of Davis v. Jacksonville Southeastern Line, 126 Mo. l. c. 75, this court said:

“Measuring the return, then, by the requirements of the statute, we see at a glance that the real question is whether service upon a named person, ‘freight solicitor’ of the defendant, in charge of its business office' at the time of said service, in the city of St. Louis, is good. Stating the point in a different form, the question is whether a ‘freight solicitor’ in charge of a railway business office is, or is not, to be held an ‘officer or agent of such corporation,’ within the mean-ing of the law governing the service.
“The return should receive a reasonable and natural interpretation. It must be fairly construed and effect be given to its plain intent and meaning. [Mikel v. Railroad, 54 Mo. 145; Hill v. Ore & Steel Co., 90 Mo. 103; Pope v. Terre Haute, etc., Co., 87 N. Y. 137.]
“We do not doubt that ‘freight solicitor’ is a sufficient designation of an agent on whom service may properly be made, when in charge of the defendant’s business office. [Palmer v. Pennsylvania Co., 35: Hun, 369; affirmed, 99 N. Y. 679; Talbot v. Railroad, 82 Mich. 66; In re Hohorst, 150 U. S. 653 ; Cook v. Imperial Bldg. Co., 152 Ill. 638.]”

The return in that ease was in this language:

“Executed this writ in the city of St. Louis, Missouri, on the twentieth day of January, 1893, by delivering a copy of the writ and petition as furnished by the derk to A. A. Poland, freight solicitor of the Jacksonville Southeastern Line, the within named defendant, who was in its. business office and had charge thereof at the time of said service; the president o,r any higher chief officer could not be found in the city of St. Louis, Missouri, at the time of said service. Fee, $1.00'.
“Patrick M. Staed,- Sheriff.
Joseph F. Scheeimen, Deputy.”

If the foregoing return is good as this court held then, the returns in the case at bar are good. The theory of the law as announced in the Davis case, supra, is this: Under the law the foreign corporation having an office and doing business in this State must so maintain said office that “legal service may be obtained upon it.” With this view of the law in the Davis case we held that if the said foreign corporation left in charge of this office required to be kept by statute a freight solicitor, then such freight solicitor was an agent for service within the purview of the statute. So in the case at bar if the defendant corporations in the suit pending nisi, left in charge of their office required to be kept by this statute a man whom they denominate a ‘ ‘ clerk, ’ ’ then ‘such clerk is an agent for the purpose of obtaining service upon the corporation. If they maintain an office, then the law compels them to so maintain it.as to enable the citizens of this State to procure service upon them, and it is to be presumed that when this corporation left Plat-field in charge of their office, they left him there in compliance with the' statute, i. e„ that he was left there as their agent in so far as the matter of receiving service is concerned. The returns show he was in charge of the office. It is not to be presumed that these corporation's were violating the law, but it is to be presumed that they were obeying the law, and were so maintaining their office as to permit service of process upon them. Under the ruling of this court in the Davis case, supra, these returns are good.

There is yet another reason appearing in the return of the respondent made to this court for granting this writ of mandamus. After the returns were made upon the summons by the sheriff the defendant in that cause appeared in the court presided over by respondent, and filed an application praying for a removal of such cause from the circuit court of the city of St. Louis to the circuit court of the United States for the Eastern Division of the Eastern Judicial District of Missouri. It is true that in such application among other things it is said:

“The defendants above named, appearing herein by their attorneys, specially mid for the sole and single purpose of presenting this petition for removal, respectfully show to this honorable court, that this suit is one of a civil nature, being founded upon an alleged liability upon a contract, and that the matter in dispute exceeds, exclusive of interest and costs, the sum of two thousand dollars as appears by the petition herein. ’ ’

To our mind this is an entry of appearance in the circuit court of the city of St. Louis, and required such court to determine the one question as to whether or not the jurisdiction was in the circuit court of the city of St. Louis or in the Federal court named in the application. It required the State court to pass upon the sufficiency of the application, to say the least. We can see no difference between a petition for removal from a State to a Federal court and an application for a change of venue from one State court to another. The latter we have held to be an entry of appearance, although the jurisdiction of the State court was questioned. [Julian v. Kansas City Star, 209 Mo. 35.]

We are of opinion that the peremptory writ of mandamus should he issued and it is so ordered.

All concur, except Burgess, G. J.