Gracey v. City of St. Louis

• Decision Date: 31 May 1909
• Citation: 119 S.W. 949,221 Mo. 1
• Parties: GRACEY v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

119 S.W. 949

221 Mo. 1

GRACEY v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. APPEAL AND ERROR (§ 1198)—REMAND TO TRIAL COURT — PROCEEDINGS IN TRIAL COURT.

Where the Supreme Court on appeal remands a cause with directions to proceed in accordance with the opinion and with the suggestion that on the record a party is entitled to a peremptory instruction, the trial judge, on the same state of facts and pleadings, must obey the directions.

2. APPEAL AND ERROR (§ 1097)—LAW OF THE CASE.

On a second appeal on the same facts and pleadings, the appellate court will not notice questions determined in the previous decision, except where manifest and far-reaching error has been committed, in which case the court may reconsider the matter.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by James G. Gracey against the City of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. W. Bates and Benj. H. Charles, for appellant. James R. Van Slyke, for respondent.

LAMM, P. J.

This is a second appeal. Here before on plaintiff's appeal. 213 Mo. 384, 111 S. W. 1159. The judgment was reversed, and the cause remanded, with directions "to set aside the nonsuit and proceed with the cause in accordance with this opinion." When here first it was heard with three companion cases. Stipulations were filed in them to the effect that (as to them) this court should reverse and remand with directions to enter up judgment for plaintiff, or reverse and remand for a new trial, or affirm—as might be done in the principal case. As indicating the scope and tenor of what was ruled in the principal case, in commenting upon the foregoing stipulations, we said (page 401 of 213 Mo., page 1165 of 111 S. W): "If such stipulations had been filed in the case at bar, we would reverse and remand with directions to enter judgment for plaintiff—this because the trial court erred in not setting aside the nonsuit and erred in giving the peremptory instruction—and on this record we think plaintiff would have been entitled to a peremptory instruction himself." When the case went below it was submitted on the same pleadings and the same facts under the following agreement: "The parties, in open court, consent to the waiving of a jury and that the case may be heard by the court; that the parties have no further evidence to offer, and it is agreed by and between the parties hereto that the case may be submitted on the evidence contained in the bill of exceptions in the former appeal of this case filed on January 8, 1906, and such declarations of law as the parties may see fit to offer." Under that submission the evidence preserved in the original bill of exceptions was read into the record. Thereupon a mandatory instruction was asked and given on behalf of plaintiff, and one asked and refused on behalf of defendant. In the latter the court was asked to say that under the pleadings and the evidence the plaintiff was "an assistant officer," and was removable by the chief inspector of boilers and elevators at pleasure. Defendant excepted to the ruling on both instructions, and by due intermediate steps brings the case again here.

It was held on the first appeal: That, under the ordinances of the city of St. Louis, the plaintiff had a fixed "tenure of office" (to wit, a term of four years) at a fixed annual salary of $1,200; that he was bonded as a "city officer" and performed his official duties under an "oath of office"; that his public position was denominated and dignified as "an office" by the ordinances, and his duties were designated and earmarked as "official duties"; and that he was removed without cause four months before his term expired. It was held, further, that, whether the question of his being an officer was referred solely to the charter and ordinances or to the definitions of the general law, the result would be the same, viz., that he was an officer and could only be removed during his prescribed term for cause and on due process of law. While in the former case we did not discuss the distinction between an officer and a mere assistant officer or an assistant to an officer, yet the point now made by defendant city was made by the same learned counsel in that, and was necessarily involved in the determination reached. The charter provision now relied on was there relied on and was held in judgment. In this connection it is not without significance that no motion for rehearing was filed in the former case. The absence of that motion shows that counsel apparently deemed the point decided and acquiesced in the ruling. The case at bar is easily distinguished from Magner v. St. Louis, ...