State ex rel. Iba v. Ellison

• Decision Date: 02 April 1914
• Citation: 165 S.W. 369,256 Mo. 644
• Parties: THE STATE ex rel. MARY IBA v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

165 S.W. 369

256 Mo. 644

THE STATE ex rel. MARY IBA v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

April 2, 1914

Judgment quashed and cause remanded.

John S Boyer and Charles C. Crow for relator.

(1) The Supreme Court has superintending control over the Kansas City Court of Appeals where it has acted beyond or in excess of its power and jurisdiction. State ex rel. v Broaddus, 245 Mo. 123. (2) An appellate court in this State is limited to the errors assigned in the motion for a new trial filed within the time allowed by law, and an attempt of an appellate court to investigate a question suggested otherwise is beyond its power and jurisdiction. R S. 1909, sec. 2081; King v. Gilson, 206 Mo. 280; Rodan v. Transit Co., 207 Mo. 406; Winn v. Grier, 217 Mo. 461; St. Louis v. Lawton, 189 Mo. 474; Williams v. Railroad, 156 Mo.App. 677; Fussellman v. Railroad, 139 Mo.App. 201; Brenton v. Thomas, 138 Mo.App. 73; Stauffer v. Railroad, 243 Mo. 323; Ewart v. Peniston, 233 Mo. 695; Sterrett v. Railroad, 225 Mo. 111; Street v. School District, 221 Mo. 671; Lynch v. Railroad, 208 Mo. 42; Bank v. Porter, 148 Mo. 183. (3) There is no power or jurisdiction in the appellate court to review the action of the trial court in overruling a motion or supplemental motion for new trial filed out of time -- the reason being that if the appellate court could review the action of the court on a motion or supplemental motion filed out of time the statute requiring the filing of a motion for new trial as a basis for conferring jurisdiction and power on the appellate court to review, would be repealed and the appellate court would then review all alleged errors committed at the trial. R. S. 1909, secs. 2081, 2038; Hamman v. Coal Co., 156 Mo. 232; Green v. Walker, 99 Mo. 68. (4) The Kansas City Court of Appeals exceeded its power and jurisdiction in considering the question of the state of mind of the trial judge in overruling motion for new trial and exceeded its jurisdiction in ruling that there is no good reason why the appellate court should not remand a cause for what it considered error of the trial court in overruling a supplemental motion for new trial as well as reversing a cause where the trial court had sustained a motion for new trial. Rausch v. Michel, 192 Mo. 303; Mead v. Spaulding, 94 Mo. 43; Mound City v. Shooting I. Co., 74 Mo.App. 661; Insurance Co. v. McDearmon, 133 Mo.App. 673; Green v. Railroad, 211 Mo. 18; Chlanda v. Railroad, 213 Mo. 244. (5) This court will control by certiorari any judgment of the Kansas City Court of Appeals entered, that is in direct conflict with a controlling decision of the Supreme Court and in this case the decision is in conflict with every decision of the Supreme Court, the Kansas City Court of Appeals and the St. Louis Court of Appeals that has been handed down in the history of our State. See cases cited above. And relator asks this court to quash the judgment of the Kansas City Court of Appeals in refusing said cause and that it be directed to restore the said judgment of the circuit court of Buchanan county. Curtis v. Sexton, 252 Mo. 221.

O. M. Spencer and Culver & Phillip for respondents.

This court has never gone further than to hold, as it did in State ex rel. v. Broaddus, 238 Mo. 189, reaffirmed in Curtis v. Sexton, 252 Mo. 221, that it will control the decision of the Court of Appeals only when the decision of said last named court is in conflict with the prior decision of this court in the same case on the same record. This court has never held that it would control the decision of the Court of Appeals because this court might be of the opinion that the decision of the Court of Appeals in any given case was in conflict with a prior decision of this court in some other case. On the contrary, this court has held in a number of cases that it would not interfere with the decision of the Court of Appeals in such circumstances. State ex rel. v. Smith, 173 Mo. 398; Railroad v. Smith, 154 Mo. 300. This court has expressly ruled that it is for the Court of Appeals to say whether its decision is in conflict with any prior decision of the Supreme Court. State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Rombauer, 140 Mo. 124. If this court is now to extend its doctrine and rule that it will quash the judgment of a Court of Appeals in any case in which this court thinks that judgment conflicts with the previous decisions of this court, it must overrule the numerous previous decisions of this court, and establish a new judicial system in this State. The Courts of Appeals will no longer be courts of last resort in those cases of which the Constitution and law give them exclusive jurisdiction. Of course, we can conceive of a case where the Court of Appeals might itself decide that its judgment was in conflict with a prior decision of this court which it refused to follow, because it thought it was wrong. In fact, there are cases of record, presenting just such a situation. Bank v. Weston, 144 Mo. 407; Shaffer v. Railroad, 144 Mo. 170. We have no doubt that in such circumstances this court would have power to compel the Court of Appeals to make its judgment conform to the previous decision of this court. Unquestionably the Constitution requires the Courts of Appeal to follow the last previous decision of this court; but unquestionably the law also confers upon the Court of Appeals the power to decide whether their judgment is in accordance with the last utterance of this court. And so long as the Courts of Appeals construe their judgment to be in harmony with the controlling decision of this court this court cannot review or annul their judgments.

FARIS, J. Lamm, C. J., Graves, Brown and Walker, JJ., concur; Woodson, J., dissents in separate opinion in which Bond, J., concurs.

OPINION

In Banc

Certiorari.

FARIS J.

-- This is an original proceeding by certiorari brought in this court against the respondents, as judges of the Kansas City Court of Appeals, to quash a judgment rendered by them in that court in a case wherein Mary Iba was respondent, and the Chicago, Burlington & Quincy Railroad Company and another, were appellants.

Respondents, as judges of said Court of Appeals, on the 5th day of May, 1913, rendered an opinion in the case of Iba v. Chicago, Burlington & Quincy Railroad Company et al. (hereinafter the case will be referred to as the "Iba case," and the parties therein as the "plaintiff" and the "defendants," respectively) in which the judgment of the trial court was reversed and the case remanded for a new trial. This opinion is officially reported in 172 Mo.App. 141, where the facts of the case, so far as the same may be pertinent and so far as the same may not be in our opinion set down, may be read more at length.

Suffice it here to say, that plaintiff in the Iba case, one Mary Iba, on the 14th day of December, 1909, filed in the circuit court of Buchanan county an action for damages against the defendant railroad and another for the negligent killing of said plaintiff's husband, one Frederick B. Iba, which it was averred in said petition occurred on the 13th day of October, 1909, on account of the carelessness and negligence of defendant railroad and one Thomas Phelan, who was the conductor of the passenger train on which, or by means of which, the casualties producing the death of decedent occurred. Upon the trial of the Iba case the plaintiff therein prevailed and was by the verdict of a jury awarded the sum of five thousand dollars as damages. The verdict of the jury in the Iba case was rendered on the 15th day of February, 1911.

Three days after the rendition by the jury of its verdict in the Iba case, and on the 18th day of February, 1911, defendants therein filed their motion for a new trial, which motion, since it cuts some considerable figure in this case (omitting caption and other formal parts), we append as follows:

"Come now the defendants in the above entitled cause, and move the court to set aside the finding, judgment and verdict herein, and grant the defendants and each of them, a new trial of said cause, and in support of said motion say:

"1. The court erred in refusing the defendant railroad company's instruction in the nature of a demurrer asked by said defendant at the close of plaintiff's testimony.

"2. The court erred in refusing defendant Phelan's instruction in the nature of a demurrer, asked by said defendant at the close of plaintiff's testimony.

"3. The court erred in refusing the instruction to find for defendant railroad company, asked by said defendant railroad company, at the close of all the testimony in the case.

"4. The court erred in refusing defendant Phelan's instruction to find for said defendant, asked by said defendant at the close of all the testimony in the case.

"5. The court erred in giving instructions 1, 2, 3, 4, 5, 6 and 7, as asked by plaintiff, and each of them.

"6. The court erred in admitting improper and illegal testimony offered on the part of the plaintiff.

"7. The court erred in excluding proper and legal testimony offered on the part of the defendants and each of them.

"8. The court erred in overruling and refusing to sustain defendant Railroad Company's petition for removal of the cause to the U.S. Circuit Court, for the Western District of Missouri, St. Joseph Division, which was filed on the first day that this cause was returnable to this court.

"9. The court erred in overruling and refusing to sustain the petition for the removal of this cause to the U.S. Circuit Court, for the Western District of Missouri, St. Joseph Division, filed by the defendant Railroad Company, at the close of all the testimony in the cause.

"10. The verdict is against the evidence.

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