Section 13.17 Appellate Courts

• Library: App Ct Prac 2015 Supp

B. (§13.17) Appellate Courts

The procedure for filing a petition for a writ of mandamus or prohibition in the appellate courts is similar to that in the circuit court. Rules 94 and 97 apply to proceedings at all levels. There are six items that must be filed in the appellate courts:

1. The writ summary

2. The petition

3. The exhibits

4. Suggestions in support of the petition

5. A proof of service

6. A filing or docket fee

Rule 84.24(a), (g).

One prerequisite is that the petition should ordinarily be filed first in the lowest court having power to issue it. Therefore, if counsel is seeking to prohibit an action by a circuit judge, the petition should first be filed in the appellate court for the appropriate district. If the relief is denied there, counsel may file a petition for the same relief in the Supreme Court of Missouri. The associate circuit divisions are no longer “inferior” to the circuit courts. Therefore, a petition for a writ directed to an associate circuit judge should be filed in the appellate court, not the circuit court. State ex rel. Johnston v. Luckenbill, 975 S.W.2d 253, 255 (Mo. App. W.D. 1998); State ex rel. Drienik v. Clifford, 944 S.W.2d 266, 268 (Mo. App. E.D. 1997).

The writ summary contains basic information about the issue presented, the parties and their attorneys, the date of the order being challenged, and when events that bear on the relief are to occur. See Form No. 16. The latter two items are particularly important. If a substantial time has elapsed since the order was entered, the likelihood that the appellate court will view the issue as one requiring extraordinary relief is diminished. The date of any future event affected by the order (such as a trial setting or a deposition) gives some indication of the urgency of the matter and may prompt the court to rule without following the procedures normally applicable...