Kamerick v. Castleman
| Decision Date | 19 April 1886 |
| Parties | JOHN KAMERICK, Respondent, v. LEWIS CASTLEMAN ET AL., Appellants. |
| Court | Missouri Court of Appeals |
ON MOTION for affirmance of judgment, for failure to file transcript as by statute provided.
Motion denied.
The case and facts, and the grounds of the motion, and the grounds of resisting it, are stated in the opinion of the court.
DRAFFEN & WILLIAMS, for the motion.
GEORGE A. CASTLEMAN, against the motion.
Respondent recovered judgment against the appellants in the Cooper circuit court on the twelfth day of November, 1885, from which defendants took an appeal to this court. The respondent at this term filed his motion asking for an affirmance of the judgment on the ground that appellants had failed to file with the clerk of this court a transcript of the record fifteen days before the commencement of this term, as by statute provided. Sect. 3717, Rev. Stat. In support of the motion respondent presents here the certificate of the clerk of the circuit court, showing the date and amount of said judgment, and the granting of the appeal, etc., as provided by the act of 1883. Laws of Mo. 1883, pp. 121-2. The appeal was returnable to this term of court, and the transcript should have been filed with the clerk not less than fifteen days before the first Monday in March, 1886.
By said section 3717, Revised Statutes, it is provided that, if the appellant fail to so file such transcript, “and the appellee produce in court such transcript, and it appear thereby that an appeal has been allowed in the cause, the court shall affirm the judgment, unless good cause to the contrary be shown.”
I. The motion is resisted by appellants on various grounds. It is first objected that the respondent has not, as required by said section 3717, presented to this court a complete transcript of the record of the circuit court, but only the certificate of the clerk showing the date and amount of judgment, and the granting of the appeal, etc. This objection raises for determination the question, whether the said act of 1883, approved March 24, 1883, applies to this court. By said act, said section 3717, Revised Statutes, was amended by striking out the words: “such transcript, and it appear thereby that an appeal has been allowed in the cause,” and substituting in lieu thereof the following words, to-wit: “The certificate of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party, etc.; such certificate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment,” etc.
The contention of appellants is that this amended act does not apply to this court, because the act of 1885 (Laws of Mo. 1885, 114), providing for the organization, etc., of the Kansas City court of appeals, does not in terms adopt the said amendatory act. The seventh section of the act of 1885 declares that: “The provisions of chapter 59 of the Revised Statutes of Missouri, concerning practice in civil cases, regulating the practice in the supreme court, and the manner of suing out writs of error and taking appeals, shall apply to practice in the Kansas City court of appeals, so far as the same may be applicable. * * *” The argument of counsel is, that said section seven only adopted the provisions of chapter fifty-nine of the Revised Statutes, which contained said section 3717, which did not, as it stood, prior to the amendment of 1883, recognize the right to affirm judgments on the mere certificate of the clerk of the circuit court; and that the amendatory act of 1883, by its terms, applied only to the supreme court and the St. Louis court of appeals; and further, that the act of 1883, in effect, repealed said section 3717. The result of which would be to leave no provision of law for prosecuting appeals to this court. But we do not think any such casus omissus, or public misfortune, is chargeable to the judiciary committee of the legislature, of which the counsel making this suggestion was a distinguished member. The vice in the argument lies in the assumption that after the amendatory enactment of 1883, there was no such section as 3717 left in the Revised Statutes, and that, therefore, there should have been in the act of 1885 a direct reference to the amendatory act of 1883, in order to avail the respondent in this contention.
I understand the rule of construction, in this respect, to be, that where a section of a statute is amended, and the amendment is in such terms that it takes the place of such section, the statute in which the original section stood, as to future acts, is to be regarded as if the amended section was incorporated therein. So much so is this the rule, that if, by an act, subsequent to the amendatory act, the section of the original statute be repealed, the amendment which stood in its stead is also thereby repealed. Green v. State, 22 Texas 588; McKibben v. Lester, 9 Ohio St. 627; Holbrook v. Nichol et al., 36 Ill. 162; State ex rel. v. Ranson, 73 Mo. 88. And this is so although the amendment declares that the section is amended “so as to read as follows.” It does not repeal, but leaves the former section in operation as amended, the amendment, of course, operating from the time of its passage. Moore v. Mausert, 5 Lans. 173; Ely v. Hatton, 15 N. Y. 595.
Where a new proviso was substituted for an old one, of like purport, it was held that the new proviso and the original statute should be read as one act, as if the new proviso appeared in the original act. Queen v. St. Giles, 3 E. & E. 224.
Our holding has been, and is now re-affirmed, that by section seven of the act of 1885, the amendatory act of 1883, was as effectually adopted as if it had stood in the original section 3717 of the Revised Statutes.
II. The act of 1885 is assailed as being in conflict with section twenty-eight, article four, of the state constitution, which declares that: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The title to said act is as follows: “An act providing for the organization of the Kansas City court of appeals, the election of its judges, and their tenure of office, and providing for the appointment of officers and attendants of said court, and their compensation, for a court room for said court, and rooms for its judges and officers, and concerning a library for the use of said court, and the taking of appeals and suing out writs of error, and bonds given therein.”
Every subject treated of in the act is clearly named in the title. But it is claimed that it treats of more than one subject in contemplation of the constitution.
Waiving any discussion of the jurisdictional right of this court to determine a constitutional question, and pretermitting any consideration of the right of an appellate court to pass on such matter, where its jurisdiction is exclusive to determine a motion like this, we hold, in common with the St. Louis court of appeals, that a constitutional question which will oust the court of its appellate jurisdiction, must be one which reasonably arises on the record and is fairly debatable. State v. Kaub, 19 Mo. App. 411; McCormick v. Ry. Co., 20 Mo App. 65; State v. Elam, 21 Mo.App. 290. There is such evident unity of object, and relation of kindred matters, looking to putting the new court into operation, and affording access to it by suitors, that the subjects embraced in the title and act present no such incongruity as to be...
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