Gipson v. Powell

• Decision Date: 19 February 1902
• Citation: 167 Mo. 192,66 S.W. 969
• Parties: GIPSON v. POWELL et al.
• Court: Missouri Supreme Court

66 S.W. 969

167 Mo. 192

GIPSON v. POWELL et al.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

COURT OF APPEALS — CERTIFICATE TO SUPREME COURT — DECISION.

On plaintiff's appeal the court of appeals held that an application for change of venue which had been granted was insufficient, and that the trial court had no jurisdiction; and, one of the judges being of opinion that such holding was in conflict with a decision of the supreme court, the case was certified, without a decision on the merits. The constitution (section 6, amendment of 1884) provides that a cause must be so certified when the court of appeals renders a decision which one of the judges therein shall deem contrary to any previous decision of the supreme court. Held, that the word "decision" refers to a decision of the case, and not to a point therein, and until the case is decided by the court of appeals it cannot be so certified.

Appeal from circuit court, Daviess county; E. J. Broaddus, Judge.

Action by William Gipson against I. W. Powell and others. Judgment for defendants was reversed by court of appeals. Certified from the court of appeals after decision of a point relating to change of venue. Remanded.

O. M. Shanklin, O. G. Williams, and Hall & Hall, for appellant. O. P. Hubbell, Harber & Knight, and Rieger & Rieger, for respondents.

VALLIANT, J.

This is a suit in equity to enjoin the defendants from prosecuting a replevin suit. It was begun in the circuit court of Grundy county; and sent by change of venue to the circuit court of Daviess county, where the trial resulted in a decree for defendants, dismissing the plaintiff's bill. Plaintiff appealed to the Kansas City court of appeals, which court had appellate jurisdiction of the case. The order for the change of venue having been made on the application of the defendant, and over the objection of the plaintiff, one of the questions in the record relates to the sufficiency of that application and validity of that order; the plaintiff maintaining that the application was insufficient, the order unwarranted, and the circuit court of Daviess county had no jurisdiction to try the cause. When the cause reached the Kansas City court of appeals, that court decided that the Daviess circuit court had jurisdiction of the case; but one of the judges being of the opinion that that decision on that point was contrary to the decision of this court in Gee v. Railway Co., 140 Mo. 314, 41 S. W. 796, that court proceeded no...