ferred in said Butler county against said Charles Wear for murder in said county.

The petition avers that said petition for habeas corpus, so instituted by said John G. Wear on behalf of said Charles Wear, was filed before the defendant as judge of the St. Louis court of criminal correction, and was directed against J. R. Speed and one Hotfelder, the turnkeys at the holdover or jail of the Four Courts building in said city of St. Louis. It is further averred that at the time said application and proceeding for habeas corpus were commenced before said defendant, and the jurisdiction to hear and determine the same assumed by him, the judges of the criminal court of the city of St. Louis, the Hon. Thomas B. Ilarvey and the Hon. Henry L. Edmunds, were both present in said city, and their respective courts were in session, during the pendency of said proceeding before defendant, and that in issuing said writ of habeas corpus and assuming jurisdiction to hear and determine the same, while the said judges of the criminal court of the city of St. Louis were present in said city, the defendant was exceeding his jurisdiction as judge of the said court of criminal correction.

A preliminary rule upon Judge Murphy was granted, returnable January 7, 1896, at which time he appeared and filed a demurrer to the petition and a motion for judgment upon the pleadings.

Owing to the enforced absence of one of the judges of this division and the refusal of another to sit on account of relation to one of the parties, the matter has been unavoidably delayed until this time.

384 Whether the defendant was exceeding his jurisdiction when he issued the writ, or continued to do so after he was notified that Charles Wear was held in custody by the sheriff of New Madrid county by virtue of a regular commitment issued upon an indictment for murder duly preferred against said Wear in Butler county, Missouri, must be determined by the laws creating the St. Louis court of criminal correction in connection with the statute governing habeas corpus in this state.

The St. Louis court of criminal correction is of statutory origin. While for some purposes it is denominated a court of record, it is not one proceeding according to the course of the common law. The powers of the judge of said court are defined in the seventh section of the act creating the court: 2 Rev. Stats. 1889, p. 2153. Among others it is provided "he shall have power to issue writs of habeas corpus, and determine the

By section 5412 of the Revised Statutes of 1889, it is specifically provided that "the several provisions contained in this chapter [chapter 78] shall be construed to apply, so far as may be applicable, and except where otherwise provided, to every writ of habeas corpus authorized to be issued by any statute of this state." By section 5414, chapter 78, of the Revised Statutes of 1889 it is further provided: "When a person applies for the benefit of this chapter, who is held in custody on a charge of crime or misdemeanor, his application, in the first instance, shall be to the judge of the circuit court for the county in which the applicant is held in custody, if, at the time of the application, such judge be in the county, except that in the city of St. Louis the application, in the first instance, shall be made to the judge of the criminal court for said city, if he [the judge], at the time of the application, shall be in said 385 city." And notice shall be given to the circuit or prosecuting attorney.

That this general chapter applies as well to the practice in habeas corpus in the court of criminal correction as in all other courts having jurisdiction in such cases cannot be doubted. It is not only in pari materia, but it is made applicable by its own terms. Little room is left for controversy. The demurrer admits the allegations of the petition, and from those averments it appears to us that Charles Wear was, and is, in custody on a charge of murder, and has applied for a writ of habeas corpus. By the plain letter of the statute, as he was detained in the city of St. Louis, he was required to apply in the first instance to one of the two judges provided by law for the criminal court of St. Louis, if either of them was in the city; and this again the demurrer admits, and yet he applied to the defendant, who was not a judge of either of said courts. Notwithstanding the legislature conferred jurisdiction on defendant to issue writs of habeas corpus, that privilege was to be exercised in conformity to the law governing all the courts of the state.

It was pointed out by this court in State v. Field, 112 Mo. 554, that when this section first became law in May, 1855, there were several courts of record in St. Louis other than the criminal and circuit courts, to wit, the court of common pleas, the land court, the law commissioner's court, and, when it was amended in 1879, the court of criminal correction. It was entirely competent for the legislature to regulate the issuing and hearing of this great writ of right so as to prevent unseemly conflicts in jurisdiction and to avoid a miscarriage of justice.

The position of defendant, that he had the right to proceed and determine the application for habeas corpus, 886 unless the

applicant disclosed that he was held in custody under a criminal charge, cannot be maintained. The moment he was apprised that the prisoner was held in custody under an indictment for murder, and that either of the judges of the criminal court was in the city, it was his duty to decline all further cognizance of the case, for it then became apparent that the application should have been first made to one of the judges of the criminal court, and from that time defendant was exceeding his jurisdiction. This statute deprives no one deprived of his liberty of an appeal to the courts, but it wisely regulates the hearing of these applications in the city of St. Louis sc that those charged with grave offenses shall only be discharged or bailed by the courts, in the first instance, which have jurisdiction in felonies, and it is only when there are no such judges present in the city that applications may be made and heard before the inferior tribunals.

Prohibition is the proper remedy for such an usurpation of jurisdiction as is charged in the petition of the attorney general and admitted by the demurrer.

The demurrer is overruled and final judgment of prohibtion awarded as prayed and for costs.

Burgess, J., concurs.

Sherwood, J., being related to Judge Wear, declines to sit.

A WRIT OF PROHIBITION is a writ directed to the judge and parties to the sult in an inferior court commanding them to cease from the prosecution thereof upon suggestion that either the cause originally or some collateral matter arising therein does not belong to that jurisdiction: Bullard v. Thorpe, 66 Vt. 599; 44 Am. St. Rep. 867, and note. See, also, the extended note to State v. Commissioners of Roads, 12 Am. Dec. 604-609.

ROGERS & BALDWIN HARDWARE COMPANY v. CLEVELAND BUILDING COMPANY.

[182 MISSOURI, 442.]

MECHANICS' LIENS-CONFLICT OF JURISDICTION.-The appointment of a receiver by a federal court for property already charged with a mechanic's lien under a judgment rendered in a state court, does not withdraw the property from the jurisdiction of the state court, nor prevent a valid sale thereof under special execution issued by the state court.

JUDICIAL SALES-SETTING ASIDE-INADEQUACY OF PRICE. While inadequacy of price alone does not justify the setting aside of a judicial sale, yet when such inadequacy is very great, slight circumstances tending to show that interested parties were misled, or by accident or mistake prevented from attending the sale, or preventing it, it may be set aside.

Massey & Tatlow, for the appellants.

Beardsley, Gregory & Flannelly, and White & McCammon, for the respondents.

446 BURGESS, J. This case was transferred to the court in bank, after an opinion reversing the judgment had been rendered: 32 S. W. Rep. 1. We adopt the statement of facts therein made, as well, also, as the first paragraph of the opinion of our learned brother, Barclay, J. They are as follows: "The questions to be determined on this appeal arose upon a motion in the circuit court to set aside a 447 sheriff's sale, which motion the court sustained. The plaintiffs appealed, after having taken proper steps to give the trial court opportunity to review its ruling, and saving the evidence and all exceptions, in the usual way. The original cause in which the motion appears is entitled: 'W. C. Rogers and A. A. Baldwin, composing the firm of Rogers and Baldwin Hardware Co., plaintiffs, v. The Cleveland Building Co., A. B. Crawford, John D. Porter, Seth Tuttle, Marion Davis, W. H. Keyser, owners, and JarvisConklin Mortgage Trust Co., mortgagees, and Samuel M. Jarvis, trustee, W. W. Baldwin, mortgagee, B. U. Massey, trustee, defendants.' Stated first in the shortest form, the case is this: "Plaintiffs obtained a judgment against the owners of the Baldwin theater or opera house property for a small amount, and a lien against the property under the mechanic's lien law. A special execution issued on that judgment, and the property was sold by the sheriff. Mr. McAfee became the purchaser, as trustee, on behalf of plaintiffs and other holders of liens against the building for work and materials furnished toward its construction. Before the sale, but after the judgment of lien, Judge Philips, at chambers, as judge of the United States circuit court for the western district of Missouri, appointed a receiver of the theater property, in the suit of Lubbock et al., plaintiffs, v. Marion Davis, Ellen Davis, and A. B. Crawford, defendants, to foreclose a mortgage upon the same property. The order of appointment was of wide reach, and is said to be a barrier to the execution of the mechanics' lien judgment, pending the receivership. The plaintiffs in this case are not named as parties to the proceeding in the federal court. After the sale under the execution on the mechanic's lien judgment, the Jarvis-Conklin Mortgage Trust Company and Samuel M. Jarvis filed 448 in the state court the motion which is the basis of this appeal. The principal grounds of the motion are that the sale was an interference with the receivership of the property estab

lished by the federal court, and was hence void. There are other reasons assigned in the motion, which will be mentioned further on.

"Passing now to some of the necessary particulars of the case, it will be convenient to keep the following dates in view: September 9, 1881, date of mortgage sought to be foreclosed in the Lubbock case in the federal court; December 5, 1891, beginning of plaintiffs' lien account; March 5, 1892, close of lien account; May 1, 1892, notice of lien; May 31, 1892, lien filed in circuit clerk's office; August 17, 1891, plaintiffs' mechanic's lien suit begun September 20, 1892, judgment in mechanic's lien suit for thirty-seven dollars and thirty-six cents, and of lien; March 13, 1893, transcript of the judgment filed in circuit clerk's office; March 16, 1894, petition for receiver in federal court; March 17, 1894, receiver appointed by Judge Philips; March 19, 1894, receiver took possession of the property; October, 1894, special execution issued from circuit court on mechanic's lien judgment, returnable to January term, 1895; November 23, 1894, sale on special execution, property bought by Mr. McAfee; December 15, 1894, sheriff's deed recorded; January 14, 1895, motion filed to set aside sale; January 23, 1895, motion sustained; sale set aside.

449 "Although the mortgage first above mentioned ostensibly antedates the opening of the lien account, it seems that the bonds (for forty-nine thousand dollars), secured by it were placed later. When that mortgage was recorded does not appear. The investigation of the facts in regard to that instrument was cut short at the hearing by an admission by one of the attorneys for the motion, who conceded that the lien part of the judgment (under which the sale took place) was a prior lien.

was

"The proceeding to enforce plaintiffs' mechanic's lien begun before a local justice of the peace, after the filing of the lien in the circuit clerk's office, according to law: Rev. Stats. 1889, sec. 6161. The defendants in that original cause were the parties named as such at the outset of this opinion. The moving parties in the present motion are the trust company and the trustee, Mr. Jarvis, both defendants in that case. Five of the defendants were personally served; the others (including the trust company and Mr. Jarvis) were ultimately brought in by posting advertisements, as prescribed in such cases: Rev. Stats. 1889, sec. 6163.

"The justice's judgment refers to the mortgage or deed of trust in which Mr. Jarvis was trustee for the Jarvis-Conklin