
    The State of Missouri ex rel. Stephen Von Phul et al., Relators, v. John A. Harrison, Judge of the Circuit Court, City of St. Louis, and James B. McCormick, Respondents.
    St. Louis Court of Appeals,
    March 21, 1893.
    1. Practice, Trial: construction or ordbr vacating prior dismissal or appeal. An order vacating a prior dismissal of an appeal from a justice of the peace, upon the condition of the payment of the-costs of the term, allows a reasonable time for such payment when it specifies no time therefor.
    2. Prohibition, Province of. The question, whether such payment was made within a reasonable time, will not be determined on an application for a writ of prohibition. It is not the office of that writ to correct the erroneous exercise of judicial powers, when the court against which it is asked has jurisdiction, and there is a remedy by apipeal.
    
      Original Proceeding by Writ of Prohibition.
    
    Writ dismissed.
    
      Vernon W. Knapp, for relators.
    
      O’Neil Ryan and K. J. O’Brien, for respondents.
   Rombauer, P. J.

— The following facts are conceded by respondents’ demurrer to the relators’ application for the writ. ' An ■ appeal from a justice in the cause of McCormick v. Von Phul et al. was dismissed for want of prosecution by tbe St. Louis circuit court on March 16, 1891. A motion to set aside tbe dismissal was at once filed by tbe appellant, and was sustained at tbe next succeeding term by tbe following order entered of record.

“Tbe court, having duly considered tbe motion to set aside tbe order of dismissal herein, doth sustain tbe same on condition that plaintiff pay tbe costs of tbe February term, 1891.”

. Tbe costs were not paid until October 14, 1891, which was at tbe second term after tbe vacating order was entered. At tbe close of each term all matters not finally disposed of were continued by general order to tbe succeeding term. Tbe cause having been set down for trial after tbe costs were thus paid, tbe relators objected to proceeding with tbe trial, claiming that tbe circuit court bad lost jurisdiction of tbe case at the close of tbe April term, 1891, and, upon tbe court overruling their objection, they applied for this writ.

It is a rule of law applicable to all cases alike that, whenever an act is to be done and no time is fixed for tbe doing of it, tbe law implies that it shall be done within a reasonable time. 2 Parsons on Contracts, secs. 661, 794. Tbe order in tbe .case at bar, vacating tbe judgment of dismissal on condition of payment of costs of tbe February term, fixed no time for tbe payment of such costs; tbe condition was, therefore, satisfied, -if tbe costs were paid within a reasonable time. "While an order of that character does not become fully effective until tbe condition is complied with, there is nothing in tbe character of tbe order which would cause its expiration at tbe end of tbe term, in tbe absence of any rule of practice on that subject. Tbe court bad unquestioned power to require tbe payment of costs at once, or at any time thereafter, whether such time was within, the term or not. Upon payment of the costs within a reasonable time, the condition for vacating the order was fulfilled, and the defendant could not thereafter claim that the court had lost jurisdiction of the cause, or that the judgment of dismissal was still in force. Willis v. The Planters' Bank, 19 Ala. 141, is directly in point.

In Hartman v. Olvera, 49 Cal. 101, the order required the payment of the costs within two weeks. In Sands v. McClelan, 6 Cowan, 482, the defendant had leave to plead upon payment of costs. He pleaded without paying costs, and the court held that he could not take a default on a plea thus filed. In Hoadley v. Cuyler, 10 Wend. 593, the payment was required to be made within a certain time by rule of court, and, not having been thus made, the party lost the benefit of a conditional order. These cases cited by relators have no application to the facts of this case. Danforth v. Lowe, 53 Mo. 217, also cited, simply decides that the court cannot entertain a motion for new trial, filed at a term succeeding final judgment.

If the relators in this case claimed that the costs were not paid within a reasonable time, they should have moved to vacate the entry of reinstatement, which became complete only upon payment of costs on that ground. The relators might also have moved, either before the close of the April term or at any time thereafter, for an immediate payment of the costs, and, in default of their being paid, for a dismissal of the appeal on the ground of the costs remaining unpaid after the lapse of a reasonable time.

We would decline, even in a case where the facts causing or excusing the delay in paying costs were all before us, to pass upon the question on this iurit as to whether costs were, or were not, paid within a reasonable time, although the parties consented that we might do so, as they do in this case. It is not the office of a writ of prohibition to correct the erroneous exercise of judicial powers, where the court has jurisdiction of the subject matter and there is a remedy by appeal. State ex rel. v. Seay, 23 Mo. App. 623, 630; State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216. As the present case presents nothing but the naked question of law, without any facts touching the propriety of the action of the court, our entertaining the writ would be highly improper.

Demurrer sustained and writ dismissed.

All the judges concur."  