State ex rel. Hyatt v. Smith

• Decision Date: 15 June 1891
• Citation: 16 S.W. 1052,105 Mo. 6
• Parties: STATE ex rel. HYATT v. SMITH et al.
• Court: Missouri Supreme Court

16 S.W. 1052

105 Mo. 6

STATE ex rel. HYATT v. SMITH et al.

Supreme Court of Missouri, Division No. 1.

June 15, 1891.

MANDAMUS TO COURT OF APPEALS.

Where the court of appeals determines that an appeal from the circuit court is not supported by such a final judgment as is essential to warrant a review of the other question in the record, a writ of mandamus will not be issued by the supreme court to compel such review, although the case is within the appellate court's jurisdiction.

Original petition for mandamus by State ex rel. Hyatt against J. L. Smith and others, judges of the Kansas City court of appeals.

S. P. Sparks and W. W. Wood, for relator. Chas. E. Yeater, for respondents.

BARCLAY, J.

This is a proceeding in which relator seeks by mandamus to compel the judges of the Kansas City court of appeals to hear and determine a cause entitled Mackey v. Hyatt. The relator here was the defendant there. That cause was an ordinary action, involving less than $1,000, begun by attachment. A plea in abatement was filed, upon which (after a trial) there was a finding for plaintiff, sustaining the attachment. Defendant made motions for new trial and in arrest thereafter, which were denied. Exceptions, embracing the rulings at the trial of the attachment issue and on the motions, were duly saved by defendant in the usual way. Defendant then, at the June term of the trial court, appealed to the Kansas City court of appeals, and filed there a certified copy of the judgment for plaintiff on the plea in abatement, under section 2253, Rev. St. 1889. The Kansas City court of appeals dismissed the appeal for reasons stated in its opinion, (reported in 42 Mo. App. 443,) the substance of which is that the judgment appealed from was not sufficiently final to support an appeal. Relator now seeks, by means of this writ, to command that court to reinstate the cause, and to hear and determine it. It is conceded that the case in the court of appeals belonged to a class which falls within the constitutional reviewing power of that court. The latter had, therefore, jurisdiction of the subject-matter of that action. Posthlewaite v. Ghiselin, (1888,) 97 Mo. 420, 10 S. W. Rep. 482; State v. Kansas City Court of Appeals, (Mo.) 16 S. W. Rep. 415, (decided at this term.) The court did not refuse to consider the cause. On the contrary, it heard the same; and, in the exercise of its judicial functions, determined that the appeal was not supported by such a final judgment in the...