Iba v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 17 January 1916
• Parties: MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

182 S.W. 135

192 Mo.App. 297

MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 17, 1916

Appeal from Buchanan Circuit Court.--Thos. B. Allen, Judge.

AFFIRMED.

Judgment affirmed.

C. C Crow for respondent.

Culver & Phillip for appellant.

OPINION

JOHNSON, J.

The appeal in this case is from a final order of the circuit court of Buchanan county entered April 14, 1915, overruling defendant's motion to quash an execution issued March 10 1915, upon a judgment for $ 5000, recovered by plaintiff in said court February 15, 1911, in an action for damages for the death of plaintiff's husband which she alleged was caused by negligence of defendant. The appeal was granted to the Supreme Court but on motion of plaintiff was transferred to this court June 29, 1915, for the stated reason that the Supreme Court "is without jurisdiction of the said cause."

Plaintiff filed a motion July 1, 1915, to dismiss the appeal for the reason, in substance, that the circuit court was without jurisdiction to hear and determine the subject-matter of the motion to quash and, therefore, this court is without jurisdiction to hear the appeal on its merits. We overruled that motion November 1, 1915, and set the cause for hearing at the foot of the December call of the docket for the October term, at which time it was argued and submitted and is now before us for determination on the merits.

This case has had an unusual and difficult course in both trial and appellate courts. Its history preceding the final decision of this court on the appeal prosecuted from the judgment for $ 5000, rendered against defendant in the circuit court may be found in our opinion filed January 11, 1915, and reported in 186 Mo.App. at page 718, et seq. As that opinion shows, we resumed jurisdiction over the cause pursuant to a decision of the Supreme Court in a proceeding in certiorari begun on the petition of plaintiff, in which that court held that we had exceeded our jurisdiction over the cause in a decision we rendered May 5, 1913, reversing the judgment and remanding the cause to the circuit court. The Supreme Court held (see State ex rel. v. Ellison, 256 Mo. 644, 165 S.W. 369) that the rule we applied in finding that prejudicial error had been committed against defendant in the trial court was contrary to certain prior decisions of the Supreme Court, and ordered that our decision and judgment thereon (reported in 172 Mo.App. 141) "be quashed and for naught held and that said cause should be remanded to that court (Kansas City Court of Appeals) to be retried and determined in conformity with the views announced herein." Pursuant to this mandate we resumed jurisdiction of the cause and following a re-argument of counsel and a resubmission of the cause on the merits, rendered the decision reported in 186 Mo.App. 718, in which we affirmed the judgment for $ 5000.

The motion to quash, now under consideration, attacks the execution which was issued upon that judgment after the circuit court received our mandate of affirmance, on the ground that we irretrievably lost jurisdiction over the cause at the expiration of the March, 1913, term, at which our decision reversing the judgment was rendered and that notwithstanding the mandate of the Supreme Court setting that decision aside and commanding us to rehear the case we still were without power or authority to assume a jurisdiction which it is contended was wholly without legal support or justification. The facts on which this attack is predicated are that the March, 1913, term of this court was adjourned to court in course on July 2, 1913, and the proceedings in certiorari were not begun in the Supreme Court until July 23d.

The argument of counsel for defendant proceeds from an erroneous conception of the nature of the error the Supreme Court adjudged we committed in the decision reversing the judgment and remanding the cause. Our jurisdiction over the parties and subject-matter has been, and is, conceded by the parties and was recognized in the decision of the Supreme Court, and if that tribunal, which is superior to the Courts of Appeals and exercises a power of supervision over the latter courts within certain defined constitutional restrictions, had found that the error in the judgment we rendered was only an error of law, it would have treated the judgment as a finality and refused the application of plaintiff for extraordinary relief. "On such a question," the opinion of the Supreme Court says, "in cases wherein they have jurisdiction, the several Courts of Appeals have the same right to decide, even erroneously, as we have, and we may not interfere in anywise, whether in our judgment their opinion be right or wrong." But the opinion further says: "Upon a point of law arising from undisputed facts, they (Courts of Appeals) are required to follow the...