# State ex rel. Auto Finance Co. v. Collins

> Supreme Court of Missouri · July 16, 1973 · 496 S.W.2d 827

URL: https://www.frixlaw.com/law-library/cases/5041091

## Case

- **Full name:** STATE ex rel. AUTO FINANCE COMPANY, a corporation, d/b/a Consumer Acceptance Company, Relator-Appellant v. Honorable Oliver M. COLLINS, Magistrate, Division No. 1, Magistrate Court, City of St. Louis, State of Missouri
- **Court:** Supreme Court of Missouri
- **Decided:** July 16, 1973
- **Citations:** 496 S.W.2d 827; 1973 Mo. LEXIS 761
- **Precedential status:** Published
- **Opinion:** Concurrence by Henley
- **Judges:** Bardgett, Donnelly, Finch, Henley, Holman, Morgan, Seiler
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5041091

## Opinion text

HENLEY, Judge
(concurring in result).
I agree that the judgment of the circuit court must be reversed and the cause remanded with directions that the judgment of the magistrate court be quashed; hence, I concur, but the concurrence is limited to that result.
The concurrence is so limited, because I have the view that the principal opinion in reaching this result has considered matters beyond the question of whether the magistrate had jurisdiction, matters the trial court could not consider because not cognizable in certiorari; that the principal opinion has thus expanded unnecessarily the narrow and limited scope of review traditionally afforded by this extraordinary writ.
Furthermore, I have the view that the holding that the magistrate had jurisdiction to quash the garnishment is inconsistent with the result reached, because if the magistrate had such jurisdiction then the garnishee had the right to appeal from the order quashing the garnishment. In that situation certiorari would not lie. In State ex rel. Palmer et al. v. Elliff, 332 Mo. 229 , 58 S.W.2d 283, 286 [4, 5] (1933), the court said: “Certiorari cannot be used as a substitute for appeal * * * and where the inferior tribunal has jurisdiction and its action can be reviewed by appeal * * *, certiorari will not lie.” An order quashing a writ of garnishment is a final judgment from which an appeal may be taken. Flynn v. First National Safe Deposit Company, 284 S.W.2d 593, 596 [6] (Mo.1955). Where certiorari does not lie, all that can be done by the court which issued that writ is to refuse to quash the record of the magistrate. State ex rel. St. Louis County v. Evans, 346 Mo. 209 , 139 S.W.2d 967 (Mo. banc 1940).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5041091. Public record. Not legal advice.