State ex rel. v. Taylor. should exercise mandamus is the proper remedy. State ex rel., Union Electric Light and Power Co. v. Grimm, Judge, 220 Mo. 483; State ex rel., Oliver Hast Auction Co. v. Grimm, Judge, 196 S. W. 1019; State ex rel., Elrick et al. v. Allen, Judge, 168 App. 463; State ex rel., J. Hahn Bakery Company et al. v. Anderson, Judge, 269 Mo. 381; Constitution of Missouri, article 2, section 10; State ex rel., Knisely v. James, 202 S. W. 1117, last point in the syllabus; State ex rel., City of Marshall v. Hackmann, 203 S. W. 960; Matter of Simons, U. S. Supreme Court, decided June 3, 1918, found in advance sheets, page 667. A. & H. N. Arnstein for respondent. (1) That a writ of mandamus be available, it is essential that the relator have a clear legal right to the thing demanded and it must be the imperative duty of respondent to perform the act required. State ex rel. v. Stone, 269 Mo. 334-342; State ex rel. v. Gas Company, 254 Mo. 532; State ex rel. v. Appling, 191 Mo. App. 592-3. (2) The primary question in issue is whether the court had the legal right to enter an interlocutory judgment by default upon defendant's failure to plead to the amended and supplemental petition filed January 4, 1918, after the time granted to them to plead thereto had passed; if it had, then the judicial discretion resting in the court to set aside the default cannot be coerced by a writ of mandamus. State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Cook, 193 Mo. App. 276. (3) Where an amended petition has been filed and defendant prays and is granted time to plead thereto, this constitutes an abandonment by him of his prior pleading, and if he fails to plead within the time granted, plaintiff is entitled to a judgment by default notwithstanding an answer to the original petition remains on file. Gettings v. Buchanan, 17 Mont. 581; Robinson v. Keys, 9 Humph. 144; Seawell v. Crawford, 55 Fed. 729; Rohrer v. Hoberg, 189 Ill. App. 172; Damon v. Coleman, 8 Mo. App. 594; Isaacs v. Shrainke, 13 Mo. App. 593; Roberts v. State Ins. Co., 26 Mo. App. 92, 98. (4) Where an amend State ex rel. v. Taylor. ed petition is filed and defendant fails to plead thereto, default may be entered, notwithstanding an answer to the original petition is on file. Bank v. Western Union Telegraph Company, 72.C. C. A. 585; LaBarre v. Waterbury, 69 Conn. 554; Bremer v. Bindesheimer, 14 Ia. 82. (5) Denials in the answer to an original petition cannot be considered as denials of new matter arising since the filing of the original petition, and pleading for the first time in an amended petition. Kelley v. Bliss, 54 Wis. 192-193. (6) The demurrer filed by defendants to the supplemental petition December 19, 1917, and which were confessed by plaintiff, operated as an abandonment of the answers previously filed by them; those answers were superseded by the demurrers and ceased to be pleadings in the cause. The filing by plaintiff thereafter of an amended petition could not revive the abandoned answers. Roberts v. State Ins. Co., 26 Mo. App. 92; Hawkins v. Massie, 62 Mo. 552; Pickering v. Miss. Valley Tel. Co., 47 Mo. 460; Ingiverson v. Railroad, 205 Mo. 335; State ex rel. Bright, 224 Mo. 523-525. (7) Under their points 5 and 6 relators urge respondent has no jurisdiction to try the case; if that point is well taken, then, as the sole purpose of this proceeding is to compel respondent to try it on its merits, the writ must be denied. Relators' remedy would be a writ of prohibition. (8) But Division No. 2 did have jurisdiction; for (a) where a suit is ended, final judgment entered and all proceedings therein have ceased, the record in the cause belongs to the whole court. Goddard v. Delaney, 181 Mo. 581-2, and (b) Any division of the circuit court of the city of St. Louis has jurisdiction to enjoin the levying of executions upon judgments rendered in said court where the primary purpose of the suit is to effect an equitable set-off, and the injunction is but an incident to that proceeding. Davidson v. Hough, 165 Mo. 577-8; Capitain v. Trust Company, 240 Mo. 495-6; Baker v. Rockabrand, 118 Ill. 365, 372; Hager v. O'Brien, 149 Ill. 410; Winston v. Coal Company, 20 Gratt. 686; Muller v. Bayly, 21 Gratt. 521. State ex rel. v. Taylor. REYNOLDS, P. J.-One Herman C. G. Luyties brought suit in the circuit court of the city of St. Louis, on June 22, 1917, against Clyde M. Christine, Earl M. Pirkey, and George P. Weinbrenner, the latter sheriff of the city of St. Louis, in which petition, after setting out various judgments which Clyde M. Christine had secured against Luyties, and under which executions had been placed in the hands of the defendant Weinbrenner, as sheriff, he prayed that Christine and Pirkey be enjoined from requiring the sheriff to levy the excutions on his property, and the defendant Weinbrenner, as sheriff, be enjoined from levying these executions; that the writs of execution be quashed and they and the levies thereof be stayed until the further order of the court and for such other and further relief as in equity he is entitled to. The petition in the case further prayed for the immediate issue of an order against the above named defendants to show cause why a temporary injunction should not issue and that in the meanwhile a temporary restraining order issue staying the executions and the levy thereof. It appears that an order to show cause was issued and the three defendants filed their returns to it. It appears, although that is not clearly set out in the abstract, that a temporary injunction was issued as prayed, whereupon the defendants filed answers, these answers consisting, first, of a denial of every allegation in the petition, with the exception of certain matters of averment which were admitted. The answers then aver that the judgments in seven of the cases referred to had been paid, and claimed that the attorneys for plaintiff were entitled to attorney's liens on such of them as are unpaid, and that Luyties has transferred his real estate and has less than $3000 assessed against him in the city of St. Louis and apparently is execution proof. Further setting out the particulars of each of the several cases, it is averred that in one of them, No. 75,926, the motion of 200 M. A-22 State ex rel. v. Taylor. the defendant Luyties for a new trial had been overruled and the cause had been appealed since execution was ordered, and that the defendants had directed the Iclerk of the court not to issue an execution in said. cause and directed the sheriff not to levy such execution, if a bond was approved and filed, but that no bond had been filed, and that in another case, No. 51,316, counterclaims, aggregating about $4000 had been interposed but never finally adjudicated, and that that cause has been pending since about 1909, and is without merit and has never been pressed to final adjudication by Luyties. It is not necessary to state the particulars of the other judgments nor the substance of these answers any further. It appears that after the filing of these answers by the three parties named, the plaintiff filed what he called "a supplemental petition," setting up matters that he claimed had arisen since the institution of the action. A demurrer was filed to this supplemental petition, on the ground that no such form of pleading was recognized under our code. Luyties confessed the demurrer and thereupon filed an amended petition, in which he embodied all the matters set out in his original petition, as well as the so-called new matter, which was the matter set up in his supplemental petition. That new matter consists of the averment, that in case No. 51,316, which the answer averred was under submission at the time of the filing of the answer, had been determined and a final judgment rendered therein, in favor of Luyties and against Christine upon the counterclaim pleaded therein, for the sum of $4207.67, and of the further averment that as to cause No. 75,926, in which a judgment had been rendered against Luyties for $7500, and in which the answer pleaded that the appeal had not been perfected, it is set up by the amended petition that the cause had been appealed to the Supreme Court and an appeal bond had been filed and approved and the judgment stayed. These, according to the statement of counsel for respondent here, counsel for plaintiff in the main cause, State ex rel. v. Taylor. constitute the only new matter set up in this amended petition. . It appears that about January 9, 1918, the defendants in the original cause, relators here, asked leave of court for 10 days' time in which to plead to the amended petition. This leave was granted, an order to that effect being entered, but in point of fact no pleadings were thereafter filed by the defendants. In this state of the pleadings and of the cause, on motion of plaintiff, "a judgment by default was entered" in the injunction suit "against the defendants therein and an inquiry ordered." Thereafter the defendants filed three several motions to set aside the default, all of which the court overruled, defendants excepting and filing motions for rehearing. All of these were overruled, defendants again excepting. The first motion, it appears was overruled by his Honor, Judge GRIMM, before whom the cause was then pending, the others overruled by his Honor, Judge TAYLOR, respondent here, who succeeded Judge GRIMM in the division of the court in which the cause was pending. Thereupon the defendants in that cause applied for a writ of mandamus against the HON. WILSON A. TAYLOR, Judge, as aforesaid, setting out, in substance, the matters we have referred to, and praying our court to award against His Honor, Judge TAYLOR, a writ of mandamus, requiring him to set aside the default and to permit relators to make their defense and to proceed in the same manner as if said default had not been granted. This petition for the writ of mandamus being presented to one of the judges of our court, an alternative writ was issued as prayed for and the cause subsequently coming on for hearing before us on a return by respondent which sets out the facts practically as we have set them out, further admitting that the cause, referring to the suit for injunction, was set for hearing and inquiry on July 8, 1918, as a default case, denies that the answers filed by the defendants on December 11, 1917, were live answers to the amended and supplemental petition, filed January 4, 1918, and denies that |