Dawson v. Dawson

• Decision Date: 28 February 1888
• Citation: 29 Mo.App. 521
• Parties: JAMES DAWSON, Respondent, v. EVA DAWSON, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 521

JAMES DAWSON, Respondent, v. EVA DAWSON, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis County Circuit Court, HON. WILLIAM W EDWARDS, Judge.

Reversed and remanded, with directions.

ZACH. J. MITCHELL, for the appellant: As authorities we submit Voulair v. Voulair, 45 Mo. 608, wherein the Supreme Court distinctly declares: " It is the duty of the judge who tries a case to go through it. And it (the motion) was one of those matters that peculiarly belonged to the original case itself; " and " the one who tried the case should have heard and passed upon the motion." See also State v. Hayes, 88 Mo. 346. An allowance pendente lite must logically and necessarily follow a case, and continue in force from the granting thereof to the final decree of judgment therein.

ALEXANDER MARTIN, for the respondent: The ground upon which the lower court granted an appeal from its decision is difficult to perceive. The decree it entered was the decree ordered by the appellate court. In reviewing a decree entered in obedience to a mandate of the appellate court, with special directions the appellate court, when the record comes up again, will consider the question only as to whether the mandate has been obeyed. It will not review its own judgment. Indeed, the term at which it was rendered being lapsed, it is without power to do so. Gamble v. Gibson, 23 Mo.App. 531. The appellant's claim for more alimony has no merits. Miller v. Miller, 12 Mo.App. 593; State ex rel. v. St. Louis Court of Appeals, 88 Mo. 135.

OPINION

LEWIS P. J.

This cause appears for the second time in this court on appeal from the circuit court of St. Louis county. Our former treatment of the cause is reported in 23 Mo.App. 169. We then reversed the circuit court's dismissal of the plaintiff's bill, and remanded the cause with specific directions " to enter a decree for the plaintiff dissolving the bonds of matrimony between him and the defendant, the plaintiff first paying to the defendant, or into court for her use, all arrearages, if any, in the alimony heretofore awarded to her by the trial court." It was further ordered " that the trial court make such orders touching the care, control, and custody of the infant child of the parties, and alimony, if any, for its sustenance, as the interests of said infant may demand."

We must take judicial cognizance of our own record in the same cause on a former appeal. This recites that, " it appearing to the court from the affidavit of defendant in her application for a change of venue, that this cause cannot be tried by his honor, W. W. Edwards, judge of this court, and of this the nineteenth judicial circuit, said parties, upon the suggestion of said judge, have agreed that the Hon. Elijah Robinson, an enrolled member of this bar, may act as special judge in said cause." The cause was regularly tried and determined before Judge Robinson, and it was the appeal from his judgment that was adjudicated by this court. Upon the return of the case to the circuit court, the mandate was exhibited in open court to Hon. W. W. Edwards, then presiding, who thereupon caused to be entered of record certain orders purporting to be in compliance with the terms of the mandate. The defendant objected at the time to the sitting, or the making of any orders in the cause, by Judge Edwards, on the ground of his incompetency to act in the matter, and afterwards renewed her objections in a motion for a rehearing. The overruling of these objections is here complained of for error.

Were the question thus presented one of first impression, we might attach some weight to the consideration that, as to a part at least, of the directions contained in the mandate, the acts to be done were so apparently ministerial, rather than judicial, that if the directions were exactly obeyed by the sitting court, no prejudicial error could arise from mere personal objections to the judge appearing to be clothed with a general authority to speak for the court. But we can indulge no speculations of this character. The rulings of our Supreme Court are the law for us, in every case to which they apply. The record entries above quoted show an admission, and virtually an announcement by Judge Edwards, of his disqualification to preside at the trial of this cause. He thus placed himself in the same category with the learned judge of whom the Supreme Court said, in Lacey v. Barrett, 75 Mo. 469: " When he announced his disqualification to preside at the trial, he abdicated his office, as to that cause, and had no more authority to direct and control the election, or correct any errors which might occur in its progress, than any other member of the bar, or citizen of the county." This, if it means anything, means that...