Curtis v. Sexton

• Decision Date: 10 July 1913
• Parties: W. ESPY CURTIS v. SAMUEL E. SEXTON, Appellant
• Court: Missouri Supreme Court

159 S.W. 512

252 Mo. 221

W. ESPY CURTIS v. SAMUEL E. SEXTON, Appellant

Supreme Court of Missouri

July 10, 1913

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

A. F Evans for appellant.

(1) By an unbroken line of decisions covering the period since the adoption of the consitutional amendments in 1884, more than twenty-five years, the Supreme Court has held that it has no power or authority, by writ of certiorari, mandamus or prohibition, to review, direct or control the decisions of the Courts of Appeals in cases in which the Courts of Appeals are invested by the Constitution and laws of the State with jurisdiction to adjudge, even though its judgment on the merits be erroneous, or in conflict with the opinions of the Supreme Court, except in cases certified by the Court of Appeals, or one or more of the judges thereof, to the Supreme Court in the manner prescribed in section 6, article 6, of the Constitution of Missouri, Amendment of 1884. In re Garesche, 85 Mo. 469; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v Smith, 101 Mo. 174; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Rombauer, 125 Mo. 632; State v Railroad, 143 Mo. 33; Railroad v. Smith, 154 Mo. 300; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 207 Mo. 107; Bradley v. Ins. Co., 163 Mo. 553; Bradley v. Ins. Co., 163 Mo. 559; Gipson v. Powell, 167 Mo. 192; Schafer v. Railroad, 144 Mo. 170; Bank v Woester, 144 Mo. 407; Wilden v. McAllister, 178 Mo. 732; Rogers v. Ins. Co., 186 Mo. 248; State ex rel. v. Smith, 129 Mo. 585; State ex rel. v Phillips, 96 Mo. 570; Sublette v. Railroad, 198 Mo. 192; Constitution of Mo., Amend. of 1884; R.S. 1909, secs. 3927, 2083; Zeller v. Surety Co., 210 Mo. 86; Vail v. Dunning, 44 Mo. 210. The Supreme Court did not have jurisdiction of the certiorari proceedings, or of the subject-matter thereof, and did not have jurisdiction to make or enter, or to direct to be made or entered, any judgment or order in this cause. (2) The judgment of the Supreme Court in the proceedings entitled State ex rel. v. Broaddus, is void because it is in violation of section 1, article 14, Amendments of the Constitution of the United States. (a) Sexton was not a party to that proceeding; yet the Supreme Court therein attempted to adjudge and determine his rights. Persons who are party to the record sought to be annulled, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties defendant, in proceedings on certiorari. 4 Ency. Pl. & Pr. 183; 2 Spelling on Extra Remedies (2 Ed.), sec. 1977, 1991; Commonwealth v. Peters, 3 Mass. 229; State ex rel. v. Denton, 128 Mo.App. 304; Cornell v. Chandler, 11 Tex. 249; Commonwealth v. Wildwood, 60 N.J.L. 365; McFall v. Dorer, 57 A. (N.J.) 136; Mitchell v. Harrison, 32 Tex. 331; Black v. Brinkley, 54 Ark. 372; State v. West Hoboken, 39 N.J.L. 421; Harris on Certiorari, secs. 82 and 102; R.S. 1909, sec. 2078. (b) Notice and hearing, before property is taken or rights or privileges withdrawn, are of the essence of due process of law. Garfield v. United States, 211 U.S. 249; Simon v. Craft, 182 U.S. 436; Hooker v. Los Angeles, 188 U.S. 314; Windsor v. McVeigh, 93 U.S. 274; State ex rel. v. Walbridge, 119 Mo. 394. (c) "Due process of law," guaranteed by the Fourteenth Amendment of the United States Constitution, which rights have been denied to said Sexton, requires that there be a tribunal competent by its constitution -- that is, by the law of its creation -- to pass upon the subject-matter of the suit; legal notice to the party whose rights are to be determined; that the tribunal shall act judicially in all things and not transcend the power conferred by the law; that the established modes of procedure shall be observed; that such procedure be adapted to the end to be attained; that the party whose rights are to be affected shall have an opportunity to be heard respecting the justice of the judgment sought, and that the tribunal shall have jurisdiction of the subject-matter and of the parties. Pennoyer v. Neff, 95 U.S. 733; Ex Parte Neilson, 131 U.S. 176; Windsor v. McVeigh, 93 U.S. 274; Hagar v. Reclamation District, 111 U.S. 701; Scott v. McNeal, 154 U.S. 34; Cotting v. Goddard, 183 U.S. 79; Burton v. Platter, 10 U.S. App. 657. (3) If the Supreme Court had jurisdiction in the proceedings on certiorari, it exceeded its jurisdiction in such manner as to violate the Fourteenth Amendment to the Constitution of the United States: By section 3, article 6, Constitution of Missouri, Amendment of 1890, it is ordained that "the opinions of each division [of the Supreme Court] shall be in writing, and shall be filed in the causes in which they shall be respectively made during the term in which the cause is submitted, and such opinions shall be a part of the records of the Supreme Court." By Sec. 2087, R.S. 1909, it is enacted that, "In each case determined by the Supreme Court, or Courts of Appeals, or finally disposed of upon a motion, the opinion of the court shall be reduced to writing and filed in the cause, and shall show which of the judges delivered the same, and which concur therein or dissent therefrom." By Sec. 2088, R.S. 1909, it is enacted that, "The opinions shall always contain a sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same." By Sec. 3845, R.S. 1909, it is enacted that, "The Supreme Court of the State of Missouri, shall keep just and faithful records of their proceedings." Courts of record can speak only through their records, and parties have a right to rely upon them. High's Extra. Legal Rem. (2 Ed.), sec. 479; Medlin v. County, 8 Mo. 235; State to use v. Sanger, 28 Mo. 314; Kansas City v. Railroad, 81 Mo. 285; Cummings v. Brown, 181 Mo. 711; Henry County v. Salmon, 201 Mo. 136; Milan v. Pemberton, 12 Mo. 598; State ex rel. v. Rose, 118 Mo. 23. By Sec. 2033, R.S. 1909, a bill of exceptions, when signed and filed, forms part of the record of the cause in which it is filed. Consault v. Lindell, 7 Mo. 251; Garth v. Caldwell, 72 Mo. 622. By Sec. 2048, R.S. 1909, it is provided that the appellant, or plaintiff in error, shall file printed abstracts of the entire record of the cause, in the office of the clerk of the appellate court, "and the clerk of the appellate court shall preserve at least one copy of all such abstracts and brief, or briefs accompanying the same." By Sec. 3941, R.S. 1909, it is provided that briefs made under the rules and regulations of the Supreme Court and Courts of Appeals, "shall be filed with the opinion of the court, by the clerk thereof, and become part of the papers in the case." On the face of the opinion and judgment of the Supreme Court, in the cause entitled State ex rel. v. Broaddus, above referred to, it appears that the finding and judgment of the Kansas City Court of Appeals in the case of Curtis v. Sexton, 142 Mo.App. 179 (that the opinion of the Supreme Court in the case of Curtis v. Sexton, 201 Mo. 217, was based upon facts essentially different from the facts in the cause then pending before the Court of Appeals), was and is justified; and it also appears that the finding and judgment of the Supreme Court in the proceedings entitled State ex rel. v. Broaddus, that the facts on which the opinion and judgment of the Supreme Court in Curtis v. Sexton, 201 Mo. 217, were based and the facts shown by the abstract of the record before the Court of Appeals, in the second appeal, in the case of Curtis v. Sexton, were not the same, and the opinion predicated, in violation of said section 2088, upon some reference made by the Supreme Court to facts dehors the opinion of the Supreme Court in the case of Curtis v. Sexton. Under the mode prescribed by the State of Missouri for the trial of causes of the character of the case at bar, issues must be framed and tried and determined in a trial court, in this case, the circuit court of Jackson county. The party deeming himself aggrieved has the right to take his cause, in the manner prescribed by law, to the court having appellate jurisdiction, to which his cause is, by law, assigned. An appellate court, exercising its appellate jurisdiction, must dispose of a case as it was made, not as it might have been made. Williams v. Walsh, U. S. Sup. Ct., Adv. Sheets Feb. 15, 1912, p. 137. The evidence preserved in the bill of exceptions taken at the first trial of Curtis v. Sexton was not offered in evidence at the second trial, as it might have been, had the case then been tried, even on the part of plaintiff, on the theory that issues (which were then, in fact, submitted, on suggestion of plaintiff's counsel, to the jury) had been adjudged and concluded by the Supreme Court. Therefore, the evidence was not before the Court of Appeals in the appeal from judgment rendered in the circuit court, at the second trial. There is no lawful way in which new evidence may be introduced in a cause pending on appeal, in an appellate court, in this State. Nor has an appellate court the lawful power to even remand a cause to a trial court, at the instance, or in the interest, of a party who did not complain and appeal in the manner by law prescribed, of and from the action of the trial court, in order that such party may mend either his pleading, or his proof. The only way in which the evidence contained in the bill of exceptions taken at the first trial of Curtis v. Sexton could have been lawfully gotten before the Court of Appeals on the appeal from the judgment at the second trial, was to have offered it in evidence at the second trial, in the trial court, and to have included it in the final bill of exceptions. ...