Fernbaugh v. Clark, 20108.
| Decision Date | 06 July 1942 |
| Docket Number | No. 20108.,20108. |
| Citation | 173 S.W.2d 646 |
| Parties | FERNBAUGH v. CLARK. |
| Court | Missouri Court of Appeals |
The respondent herein has filed a motion for rehearing. Motions for rehearing in this court, as applied to cases wherein the statutory right of appeal has been given, serve two purposes. By the motion we are informed of matters of claimed error and contention of conflict with opinions of the Supreme Court. This to the end of uniformity of law. If the motion be overruled, it becomes the basis of application for certiorari in the Supreme Court. The matter of Habeas Corpus Ad Subjiciendum, herein involved, is a writ of right which the sovereign people have reserved and no delegation of power by the sovereign people to suspend this writ or to interfere with the right reserved has been delegated to the legislative or judicial branches of government. The sovereign people have, however, delegated to constitutional courts, inferior and superior, and to the judges thereof, the concurrent duty of enforcing the right.
In appellate cases the judgment and the execution thereof is suspended. Ten days are given for filing of motion for rehearing; thereafter, this motion is taken up for consideration in council, and, if overruled, thirty days are given for application for certiorari which must thereafter be considered in the Supreme Court, and if granted, our record is certified to that court for its action thereon, and if the Supreme Court considers our opinion is in conflict, our opinion is quashed and cause remanded for rehearing. If not in conflict, the Supreme Court quashes its own writ and in that event the judgment of this court becomes final and subject to execution. It therefore happens that not only weeks and months, but possibly a year or more of delay before judgment of this court, in matters wherein an appeal lies, is effective and in cases of our opinion being upheld, not effective, or subject to execution until the processes peculiar to appeal cases have expired.
The application of the processes in the matter of the statutory right of appeal, if applied to matters in habeas corpus, would entirely nullify the right of the writ and render the matters therein moot, in that citizens would have been restrained...
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Baker v. Baker
...in the instant case. Contrast Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 173 S.W.2d 646; Konta v. St. Louis Stock Exchange, 150 Mo.App. 617, 131 S.W But, notwithstanding the fact that defendant's counsel admittedly was present ......
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Daugherty v. Nelson, 21558
...which it is based, applies only to parties and privies to such judgment.' See also Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 173 S.W.2d 646. We are not here concerned with that part of the judgment of the probate court which, likewise without any notice to petitioner, purports t......
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...its rendition as will justify and require its modification. Hayes v. Hayes, supra; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 173 S.W.2d 646. Such a motion cannot be employed as the means for a collateral attack upon the decree, for if the requisite grounds exist the proper proce......
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...consideration was valid. See State ex rel. Shoemaker v. Hall, Mo., 257 S.W. 1047; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 173 S.W.2d 646; Burgess v. Burgess, supra; Baker v. Baker, Mo.App., 274 S.W.2d 322. However, it has been recognized by these and other cases that a summons......