Bussiere's v. Sayman

Decision Date02 April 1914
Citation165 S.W. 796,257 Mo. 303
PartiesBERTRAM J. BUSSIERE'S ADMINISTRATOR; WILLIAM R. FOSTER, Appellant, v. T. M. SAYMAN
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Appeal dismissed.

Frank A. Habig and Charles A. Houts for appellant.

Leahy Saunders & Barth for respondent.

OPINION

In Banc

FARIS J.

-- This case comes to upon the certificate of the St. Louis Court of Appeals, for the reason that in the opinion of that court the conclusion reached by it herein, while following this court, is in conflict with the opinion of the Kansas City Court of Appeals in the case of Miller v Crawford, 140 Mo.App. 711, 126 S.W. 984. The facts and the point first mooted appear from the statement of the learned judge who wrote the opinion of the court, thus:

"This is an appeal from an order of the court setting aside a final judgment by default, and the immediate question for consideration pertains to the right of appeal in such cases. The suit is on account for the reasonable value of advertising placed by defendant for plaintiff under a contract." [Apparently in the preceding clause the words "defendant" and "plaintiff" have been transposed by a typographical error. Since the rendition of the opinion herein by the St. Louis Court of Appeals plaintiff has died and the case has been properly revived in the name of his administrator.]

"It appears that defendant was duly summoned more than thirty days before to answer plaintiff's petition on the first day of the October term, 1910, but he defaulted and came not. Thereafter, and during the October term of court, to-wit, on November 25, 1910, an interlocutory judgment by default was entered against defendant and the cause continued. At and during the succeeding December term, 1910, of the court, and on the fourth day of January, 1911, the cause came on for hearing, and an inquiry of damages was had. Defendant, though duly called, came not, and after the evidence was heard, the court gave judgment for plaintiff for the sum of $ 3693.95. Fourteen days thereafter, and during the same, or December, 1910, term of court, and on the 18th day of January, 1911, defendant appeared and by his motion in writing moved the court to set aside the judgment rendered against him. Thereafter, on March 20, 1911, and during the February term, 1911, of the court, to which the motion had been continued, the motion to set aside the judgment was sustained by the court and by its order of record the final judgment entered January 4, 1911, was set aside and vacated."

From the action of the circuit court in vacating and setting aside the judgment so by it theretofore rendered by default, plaintiff, as before said, has appealed.

I. Some contention is urged by respondent against our jurisdiction to hear and determine this case, for the reason, as averred in the briefs, that "the St. Louis Court of Appeals in Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507, in certifying this case to the Supreme Court, stated that it was plain that under the decision in Crossland v. Admire, 118 Mo. 87, 24 S.W. 154, this case was not appealable (followed in the case of Breed v. Hobart, 187 Mo. 140, 143-144, 86 S.W. 108), but certified it on the ground that an order of dismissal conflicted with the decision of the Kansas City Court of Appeals in Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984."

The point as made has some new phases, due to the fact that the St. Louis Court of Appeals held to the same views touching whether an appeal lies upon the facts here, as were held by the Kansas City Court of Appeals in the case of Miller v. Crawford, supra, but, while holding the opinion that an appeal lies, the learned judge of the St. Louis Court of Appeals felt constrained to follow the path of constitutional duty and to dismiss this appeal on the authority of Crossland v. Admire, 118 Mo. 87, 24 S.W. 154. However, we deem it absolutely clear, that this contention is not well taken; that under section 6 of the Amendment of 1884, to the Constitution, and under the repeated rulings of this court construing that section, this case has come to us from the St. Louis Court of Appeals, with plenary jurisdiction to hear and determine it just "as in the case of jurisdiction obtained by ordinary appellate process." In short, we are empowered to determine it because the Court of Appeals found and adjudged that a conflict existed between the views herein expressed by them (Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507), and the opinion of the Kansas City Court of Appeals in the Miller-Crawford case, supra. The statement of the point and the facts of the case settle it, without argument. Matters and things analogous hereto and decisive hereof, are discussed in the late case of Epstein v. Pennsylvania Railroad Co., 250 Mo. 1, 156 S.W. 699. Since that case is recent and settles this point here against the contentions of respondent, we need not again take up space with it.

II. Another strenuous contention of respondent, to-wit, "that from an order of the court nisi sustaining the motion of defendant to set aside a judgment by default no appeal is given by our statute," next deserves our attention. If this contention of respondent is well taken, we must dismiss this appeal. The St. Louis Court of Appeals dismissed it as not appealable; not because in their opinion no appeal lay, but because this court in the case of Crossland v. Admire, supra, had held that no appeal lies in such case. In short, they give it as their opinion that we are in error in our holding here on this itching question, but they followed us as in duty bound. [Sec. 6, Amendment of 1884 to Constitution.]

There is no sort of doubt that the case of Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984, is in direct conflict with the holding of the Supreme Court in the case of Crossland v. Admire, 118 Mo. 87, 24 S.W. 154. Neither is there any doubt that the rulings of the appellate courts of this State are almost irreconcilable, and that the whole question is now by many diverse rulings in almost inextricable confusion. This confusion began since the amendment of 1891 to the statute which confers the right of appeals in civil cases. In the latter year this section was so amended as to largely increase the number of interlocutory -- as contradistinguished from final -- orders from which in a pending case appeals might be taken. [Laws 1891, p. 70.] Ever since 1891 (except for the amendment of 1895, conferring the right of appeal from certain interlocutory orders concerning receivers, Laws 1895, p. 91, and not pertinent to this discussion, and pertinent only as one of the reasons why this court cannot keep up with its docket), this section has read thus:

"Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case. The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket." [R. S. 1909, sec. 2038.]

It is a minor premise to this discussion that appeals are wholly creatures of the statute, and that the right of appeal does not exist except where expressly given. This is fundamental, or if not fundamental, well-settled. [Snoddy v. Pettis County, 45 Mo. 361; Ackerman v. Green, 201 Mo. 231, 100 S.W. 30; State ex rel. v. McElhinney, 241 Mo. 592, 145 S.W. 1139; State v. Vaughn, 83 Mo.App. 457.] Clearly then unless the section above set out, by virtue of the amendments made thereto in 1891, confers the right of appeal in this sort of case at the stage attained herein when this appeal was taken, this appeal was premature and must be dismissed.

It is not necessary to here collate, or even refer to, the many early cases upon this question. But as forecast, since the amendment of 1891 caused all the trouble, we need not go beyond it; prior holdings of our courts on this point prove nothing.

The first case in this court after the statute was amended in 1891 which dealt with this matter of whether an appeal lies in this sort of case, was the case of Crossland v Admire, 118 Mo. 87, 24 S.W. 154, which was decided in 1893. There the section of the statute as it now stands -- so far as this question goes -- was before the court, but it was ruled nevertheless, that an appeal does not lie to a plaintiff from an order of the circuit court vacating a default judgment. While the argument of the court in the opinion in that case is largely directed to the question whether such a case is appealable because it is an appeal taken from "an order granting a new trial," yet the case was upon the facts on all-fours with the instant case and it was the duty of the court to hold in judgment every point and clause of section 2038, by which jurisdiction of the appeal could be retained. We must assume, therefore, that the learned jurist who wrote the opinion of the court did so and that he...

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