Section 13.14 No Adequate Remedy by Appeal

LibraryApp Ct Prac 2015 Supp

E. (§13.14) No Adequate Remedy by Appeal

A little used, but still available, ground for issuance of a writ of prohibition requires a showing that the relator has no adequate remedy by appeal. Generally, this is always a requirement for the issuance of any writ because, if the relator can effectively appeal the case, there is no need for extraordinary relief. See, e.g., State ex rel. Westmoreland v. O’Bannon, No. WD 61279, 2002 WL 31367853 (Mo. App. W.D. Oct. 22, 2002) (writ denied because order refusing to set aside default judgment is appealable); Shelton v. Farr, 996 S.W.2d 541 (Mo. App. W.D. 1999) (cannot use extraordinary writ to seek review of decision when relator failed to take timely appeal). This ground most often comes into play with regard to interlocutory orders that, while they cannot fairly be characterized as an abuse of discretion or in excess of jurisdiction, nonetheless decide:

[A]n important legal question that routinely escapes this Court’s attention because of the litigation process and the lack of interest in some instances to prosecute an appeal at a client’s expense. . . . Thus, where there is an issue which might otherwise escape this Court’s attention for some time and which in the meantime is being decided by administrative bodies or trial courts whose opinions may [by] reason of inertia or other cause become precedent; and, the issue is being decided wrongly and is not a mere misapplication of law; and, where the aggrieved party may suffer considerable hardship and expense as a consequence of such action, we may entertain the writ for purposes of judicial economy under our authority to “issue and determine original remedial writs.”

State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862–63 (Mo. banc 1986) (footnote omitted).

The kind of issue that falls within this limited ground for prohibition is illustrated by the Court’s decision in State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994). In Chassaing the relator was being tried for indirect criminal contempt because of actions...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT