The Barber Asphalt Paving Co. v. Young

• Decision Date: 29 April 1902
• Citation: 68 S.W. 107,94 Mo.App. 204
• Parties: THE BARBER ASPHALT PAVING COMPANY, Appellant, v. ALEXANDER YOUNG et al., Defendants; MARY E. GAEBLER, Respondent
• Court: Missouri Court of Appeals

68 S.W. 107

94 Mo.App. 204

THE BARBER ASPHALT PAVING COMPANY, Appellant, v. ALEXANDER YOUNG et al., Defendants;

MARY E. GAEBLER, Respondent

Court of Appeals of Missouri, St. Louis

April 29, 1902

Appeal from St. Louis City Circuit Court.--Hon. Selden P. Spencer Judge.

AFFIRMED.

Judgment affirmed.

Adiel Sherwood for appellant.

(1) In this State, a writ of error always issues after final judgment in the trial court, and so at common law. Secs. 835 837, R. S. 1899; Coke Litt., 288b. (2) A writ of error is a constitutional method of review, side by side with appeal. Secs. 12, 20, 27, art. 6, and amendment 1884, Constitution; Blunt v. Sheppard, 1 Mo. 219; Calloway v State, 1 Mo. 211; English v. Mullanphy, 1 Mo. 780; Jim v. State, 3 Mo. 147. (3) A writ of error is not a cause of action or suit, but a writ which issues to review the final judgment of a trial court. Hinchman v. Rutan, 31 N. J. L. 499; Moore v. Cooley, 2 Hill 412. "A writ of error is a commission to judges of a superior court, by which they are authorized to examine the record upon which a judgment was given in an inferior court, and on such examination, to reverse or affirm the same, according to law." 3 Bacon Abr., 320. (4) And therefore differs from another writ of action. Jenk. Rep. 25 and 140; 2 Inst. (Ed. 1797), 39-40; Cohens v. Va., 6 Wheat. 264; Co. Litt. 288b; Cro. Ja., 160; Manning v. Montgomery, 1 Wash. 434; Garrison v. Cheeny, Ib. 489; Martin v. Stites, 11 Vesey 200; Duke v. Helms, 46 S.W. 761; Fitzsimmons v. Johnson, 17 S.W. 100; Clarke v. Mathewson, 12 Pet. 170; Nations v. Johnson, 24 How. 205; Stephen Pl. (3 Ed. Tyler), 40, 41, 141, 142, 143, 144, 162; Hinchman v. Rutan, 31 N. J. L. 499; 1 Roll Ab., 747, pl. 13; Wright v. Mutt, 1 Durn. and East. 388; s. c., I. T. R. Heyden v. Godsale, 2 Bulstrode 162; Overseers v. Beedle, 1 Barb. (N. Y.) 11; McDonald v. Bank, 2 How. Pr. (N. Y.) 35; Moore v. Cooley, 2 Hill (N. Y.) 412; Laidler v. Foster, 4 Barn. and Cress. 116; 2 Tidd's Pr. (3 Am. Ed.) 1134; Camden et al. v. Edie, 1 H. Black 21; 3 Story Const. (5 Ed.), secs. 1761, 1762; Works on Juris., sec. 85, p. 693; In re Chetwood, 165 U.S. 462. (5) "A writ of error is a commission; it is not an action." 1 Coke's Second Inst. (Ed. 1797), 39, 40; Heyden v. Godsole, 2 Bulstrode 162. (6) A writ of error is not a "suit," or "action," within the meaning of a statute providing that no suit commenced by or against certain officials should be abated, etc. Overseers v. Beedle, 1 Barb. (N. Y.) 11. (7) The writ of error does not dissolve or revoke the judgment of the court below. It simply suspends the enforcement of the judgment; and when a judgment is reversed or affirmed upon a writ of error or appeal by an appellate court, manifestly the judgment of the court below is affirmed or reversed, and if reversed the mandate is then transmitted to the lower court to enter a judgment in conformity with the ruling of the appellate court. Lewis v. Railroad, 59 Mo. 503; State ex rel. v. Dillon, 96 Mo. 56; Railroad v. Atkinson, 17 Mo.App. 484; State ex rel. v. Woodson, 128 Mo. 516; Story's Constitution (5 Ed.), sec. 1761; Matthewson v. Railroad, 44 Mo.App. 99. (8) Section 837 of our statute gives three years within which to sue out a writ of error and the action in contemplation of law is pending in the lower court till the time to sue out the writ has expired. The successful party in the trial court can hardly have an attorney of record upon whom notice of the writ can be legally served, unless the writ of error be a continuation of the litigation in that court. In re Chetwood, 165 U.S. 462; State ex rel. v. Canfield, 42 L. R. A. 73; Harle v. Langdon's Heir's, 60 Tex. 555; Hart v. Mills, 38 Tex. 513; Brackenridge v. San Antonio, 39 Tex. 66; Hickcock v. Ball, 46 Tex. 613; Moore v. Moore, 59 Tex. 54; Duke v. Helms, 46 S.W. 761; Clark v. Farrow, 4 B. Mon. (Ky.) 446; Fitzsimmons v. Johnson, 17 S.W. 100; Manning v. Montgomery, 1 Wash. 434; Barber Asphalt Paving Co. v. Lampton, 79 Mo.App. 286; Bailey v. Winn, 113 Mo. 155. (9) At common law, the attorney of record in the trial court could waive writ of error or notice of writ and bar right of his client to either. Laidler v. Foster, 4 Barn. & Cress. 116; Executors of Wright Bart., v. Nutt, 1 T. R. 388; Camden v. Edie, 1 H. Black 21; Bacon Abr., 380, under "Error" and Id. 490, under "Attorney"; 1 Coke Second Inst. (Ed. 1797), 39, 40. (10) Aldrich v. Aetna Co., 8 Wall. 491; Buckingham v. McLean, 13 How. (U.S.) 150; Renaud v. Abbott, 116 U.S. 281.

W. M. Kinsey for intervener.

(1) A writ of error is a new suit, and not a continuation of the old. Intervener having bought the land on the faith of the record, as it stood August 31, 1896, after final judgment and before the stipulation had been filed, she was not a purchaser pendente lite. Macklin v. Allenberg, 100 Mo. 337, reaffirmed in Macklin v. Schmidt, 104 Mo. 365; Williams v. Beek, 63 Mo.App. 150; Zebra v. Railroad, 80 Mo.App. 417; Kroeger v. Dash, 82 Mo.App. 334. (2) The decision of the Supreme Court in the Hezel case did not set aside the final judgment entered in these cases at the February term, 1896, nor did the stipulation between plaintiff and defendants of May 17, 1897, in which they agreed that they should be set aside, have that effect. It takes action by the court to set its judgment aside; moreover, the circuit court had no power at the time this stipulation was filed to do this, for it had lost all jurisdiction over the cases. Danforth v. Lowe, 53 Mo. 217; Melvin v. Railroad, 89 Mo. 104; State ex rel. Brown v. Walls, 113 Mo. 46; Bloss v. Tacke, 59 Mo. 174; Bank v. Baker, 145 Mo. 336; Maddox v. Railroad, 75 Mo.App. 510. (3) These suits being in the nature of proceedings in rem and intervener having acquired an interest in the res, her right to intervene is well settled. 17 Am. and Eng. Enc. of Law (2 Ed.), pp. 183-4, and cases cited. (4) A writ of error is matter of substance and not of form, and the parties can not by stipulation in the absence of the writ, confer jurisdiction, or dispense by consent with the writ entirely, in a case where it properly lies, as it is directed to the court below and not to the parties. 7 Enc. Pl. and Prac., pp. 822-4; Stevens v. Clark, 62 F. 321, in which the authorities are reviewed.

BLAND, P. J. Barclay and Goode, JJ., concur.

OPINION

BLAND, P. J.

--Defendant, Alexander Young, in 1893 was the owner in fee of three parcels of real estate in the city of St. Louis, incumbered by deeds of trust. Three special taxbills for street improvements were issued by the city authorities of the city of St. Louis to the Barber Asphalt Paving Company against each of the three parcels of real estate owned by said Young. The taxbills were dated on July 3, 1893. Suits were commenced to enforce the special lien of these several taxbills in the circuit court of the city of St. Louis on June 25, 1895, against Alexander Young and the mortgagees. These suits were numbered, respectively, 157, 159, and 160. The defendants were duly served with process of summons. Alexander Young, who is an attorney at law, filed in each of said suits a general demurrer to the several petitions filed therein, and signed the said demurrers as attorney for himself and the other defendants. The demurrers were sustained by the court and plaintiff's counsel took leave to file amended petitions in twenty days thereafter. After the expiration of this leave plaintiff declined to amend its petitions, and final judgment was rendered in each of said causes on the demurrers. These judgments were rendered in the month of April, 1896. Case No. 157 was appealed to this court, where the judgment of the circuit court was reversed and the cause remanded. It has since gone to final judgment in favor of the plaintiff. No steps were taken to appeal Nos. 159 and 160, and no writs of error were ever sued out in either of said causes.

After the judgment in No. 157 had been reversed and remanded, there was pending in the Supreme Court a cause, wherein the Barber Asphalt Paving Company was plaintiff and Morris Hezel and others were defendants, involving the validity of the ordinances of the city of St. Louis in respect to special taxbills for street improvements. The validity of the taxbills in cases Nos. 157, 159 and 160 depended upon the final decision of the Hezel case.

Early in February, 1897, Adiel Sherwood, Esq., acting for the plaintiff, and Alexander Young acting for himself and as attorney for defendants, entered into the following stipulations:

"State of Missouri, City of St. Louis, ss.

In the Circuit Court, February Term, 1897.

The Barber Asphalt Paving Company,

Plaintiff,

v. No. 160, Room 7. (49)

Alexander Young et al., Defendants.

The Barber Asphalt Paving Company,

Plaintiff,

v. No. 159, Room 6.

Alexander Young et al., Defendants.

The Barber Asphalt Paving Company,

Plaintiff,

v. No. 157, Room 6.

Alexander Young et al., Defendants.

STIPULATION:

"By the consent and agreement of plaintiff and all of the defendants the final judgment heretofore entered against plaintiff is set aside in cases No. 159, in room 6, and No 160, in room 7, and they are reinstated upon the docket with the same force and effect as if final judgment therein had never been rendered; in other words, these cases shall stand for trial, and it is stipulated and agreed that the defendants shall have leave to withdraw their demurrer in the two cases mentioned and also in No. 157, in room 6, heretofore filed therein, and to answer, and thereafter plaintiff may reply and then it is stipulated and agreed by and between plaintiff and defendants in all of said cases as follows:

"1. The case of the Barber Asphalt Paving Company v. Morris Hezel et al., No. 508, in court room No. 5, shall be...