The opinion
ON MOTION FOR REHEARING.
Relator has filed a motion for rehearing in which it is alleged that we overlooked a decision of the Supreme Court when we said:
"We know of no decision that holds that a circuit court of Missouri can make and enforce an order requiring the defendant to plead, answer or demur to a petition."
Relator calls our attention to the case of State ex rel. Texas Portland Cement Co. v. Moses N. Sale, 232 Mo. 166 . In that case a suit had been brought by the cement company against two defendants. The sheriff made return showing that he had served the process on both defendants. They appeared specially and asked the court to quash the service of the summons on the theory that the sheriff's return showed that the process was improperly served. The motion was sustained. Thereafter, the plaintiff as relator instituted proceedings by mandamus in the Supreme Court against the circuit judge. According to the statement contained in the opinion relator sought by mandamus to compel one of the judges of the circuit court of the city of St. Louis to proceed with the cause. The opinion states that there was presented the sole question of the sufficiency of the sheriff's returns. It is true that in the statement of the case it appears that after the motion to quash the service was sustained the *Page 849
plaintiff filed in the circuit court a motion to compel defendants to plead, answer, or demur to the petition. That fact did not prevent the plaintiff from maintaining mandamus to compel the court to proceed with the exercise of its jurisdiction; because the court's jurisdiction had been properly invoked and the court by quashing the service had unequivocally refused to proceed with the exercise of its jurisdiction. The opinion does not indicate that the Supreme Court compelled the circuit judge to enter an order compelling the defendants to plead, answer, or demur, to the petition. Nevertheless, out of an abundance of precaution, we have procured a copy of the prayer of the petition and of the writ in the case of State ex rel. v. Sale, supra, and an inspection demonstrates that relator has misconstrued the action of the Supreme Court. The relator's prayer in State ex rel. v. Sale, supra, was:
"That a writ of mandamus may issue against said Moses N. Sale, judge of said circuit court of the city of St. Louis, Missouri, commanding him to entertain and hear said petition and to proceed to a final determination of said cause according to the statutes in such case made and provided; and for such other process, orders and remedies as may, to this honorable court, seem meet and proper."
The writ required the trial judge to set aside the order overruling relator's motion to set aside a previous order quashing the returns, and to set aside the order sustaining defendant's motion to quash the returns, and that the motion to quash the returns be overruled. It is true that defendant's motion to set aside the order quashing the returns also prayed that defendants be required to plead, answer or demur, but the writ did not require such an order to be made.
We adhere to our original views. The motion for rehearing should be overruled. The commissioner so recommends. Boyer, C.,
concurs.