Keller v. Summers

• Decision Date: 02 December 1914
• Citation: 171 S.W. 336,262 Mo. 324
• Parties: S. A. KELLER et al., Plaintiffs in Error, v. R. F. SUMMERS
• Court: Missouri Supreme Court

171 S.W. 336

262 Mo. 324

S. A. KELLER et al., Plaintiffs in Error, v. R. F. SUMMERS

Supreme Court of Missouri, First Division

December 2, 1914

Error to Jasper Circuit Court. -- Hon. Haywood Scott, Judge.

STATEMENT.

This suit was decided by the Springfield Court of Appeals by the affirmance of the judgment for plaintiff on the second count of his petition and the reversal and remanding of his judgment on the fourth count of his petition. One of the members of that court dissented to the reversal and remanding in a written opinion, setting forth the grounds of his dissent and stating that "to reverse that part of this judgment," etc., "is also in direct conflict with Cartwright v. Culver, 74 Mo. 179, . . . and also in direct conflict with Foster v. Railroad, 115 Mo. 165." Thereupon the majority opinion concludes, to-wit: "Self Special Judge, concurs: Cox, J., dissents as to that part of the opinion reversing and remanding the cause on the fourth count of the petition; and requests that the cause be certified to the Supreme Court, and it is so ordered. Gray J., not sitting." [Summers v. Keller, 152 Mo.App. 626 646, 651.]

As shown in the two opinions of the judges of the Springfield Court of Appeals, this cause was lodged there after a writ of error had been sued out in the Kansas City Court of Appeals by the defendants in a judgment in favor of plaintiff in the circuit court of Jasper county, by the transference of the cause to the Springfield Court of Appeals. It is shown by the record and briefs in the latter court that the three first counts of plaintiff's petition were different statements of a cause of action for the alleged recovery by defendants of a certificate of deposit for $ 500; that the next three counts were for the values of a certificate of deposit for $ 300; and that the seventh count was dismissed on the trial.

Plaintiff prayed actual and punitive damages separately on both causes of action and alleged in each a proper basis for the recovery of both measures of relief. Plaintiff had judgment on the first cause of action for $ 507.50 actual, and $ 937.50 punitive, damages. On the second cause of action plaintiff recovered $ 314.50 as actual and $ 562.50 as exemplary damages.

The first recovery was rendered on count number two of the petition and the second on count number four. So far as necessary the language and scope of these counts will be adverted to in the opinion. The cause is here under the above quoted order of the Springfield Court of Appeals, based upon the above quoted dissenting opinion of one of its judges and his request for its certification and transfer.

Affirmed (conditionally).

M. R. Lively for plaintiffs in error.

H. W. Currey, George V. Farris and W. J. Owen for defendant in error.

OPINION

I.

BOND, J. (After stating the facts as above).

Although no question is made by either of the counsel in this case as to the acquisition of jurisdiction of this court, it is not improper that we should determine that for ourselves before considering the merits of the writ of error by which the cause was taken to the Springfield Court of Appeals. By section six of the Amendment of the Constitution adopted in 1884, specific provision is made by that instrument for the certification and transfer of any case or proceeding pending in any court of appeals to this court, and in the event that method is complied with, this court acquires the same jurisdiction of such case or proceeding as if it had been rightfully brought here by appeal or writ of error from the trial court, and must rehear and determine it. To vest jurisdiction in this constitutional mode it is necessary: First, that the particular court of appeals where the case or proceeding is pending shall render a decision therein, not a mere ruling on a preliminary or interlocutory motion which is not decisive of the case (Gipson v. Powell, 167 Mo. 192); second, some one of the judges of that court must state of record by adequate terms, that he deems the decisions of the majority of the court of appeals contrary to a previous decision of this court or some one of the courts of appeals; third, upon the filing of such a statement by one of its judges the court of appeals must, of its own motion pending the same term, certify and transfer said case or proceeding and the original transcript therein to the Supreme Court; fourth, this procedure was devised to prevent disharmony in the rulings of the appellate courts of this State and to enforce in all others the paramount authority of the "last previous rulings of the Supreme Court on any question of law or equity." [Ex parte Conrades, 185 Mo. 411, 85 S.W. 160.]

It has been uniformly held in this State since the adoption of this constitutional provision that this method of transfer of jurisdiction is accomplished solely by the statement of one of the judges of a court of appeals that he deems the ruling on which its judicial action is taken, to be contrary to the previous ruling of this court or some court of appeals. He is not required under the Constitution to employ any set or stereotyped terms to express that idea. It is only necessary that in some authentic way he declares his opinion of the contrariety of the court of appeals with a subsisting previous opinion of this court or some one of the courts of appeals. It does not at all affect the displacement of jurisdiction by this process that the judge so stating should be in error in his opinion or mistaken as to the fact. It is enough to oust the jurisdiction of the court of appeals in any case or proceeding for one of the judges to say in proper words and of record that its decision of any case is in conflict with an unreversed ruling of this court or any one of the courts of appeals. [State ex rel. v. Philips, 96 Mo. 570, 10 S.W. 182; State ex rel. v. Smith, 107 Mo. 527, 17 S.W. 901; Clark v. M. K. & T. Ry. Co., 179 Mo. 66; Wilden v. McAllister, 178 Mo. 732; Rodgers v. Fire Ins. Co., 186 Mo. 248, 85 S.W. 369; Bradley v. Milwaukee Mech. Ins. Co., 163 Mo. 553, 559, 63 S.W. 844; State ex rel. v. Smith, 129 Mo. 585, 31 S.W. 917; Smith v. M. P. Ry Co., 143 Mo. 38, 44 S.W. 718.]

In the case at bar the dissenting judge stated of record that "to reverse" this case as his colleagues did "was in direct conflict" with two decisions (naming them) of this court. If there is any potency in words to convey the idea that he thought the decisions of his associates to be contrary to the decisions of this court, then the above terms did express that opinion on the part of the dissenting judge. He could not have expressed that thought more clearly nor distinctly if he had copied the language of the Constitution. It is idle to say that he should have used the word "decision" instead of the words "to reverse" when speaking of the action of the court which he said was "in direct conflict" with the previous decisions of this court. To reverse a case is to decide it; and to speak of a reversal is to speak of a decision, for there can be no reversal without a decision "to reverse." Hence, when Judge Cox stated that the reversal of this case was "in direct conflict" with two mentioned decisions of this court, he, in effect, stated in the clearest and most unequivocal form that the court of which he was a member had rendered a decision -- the causa causans of its reversal -- which was "in direct conflict" with the rulings of the two cited cases in this court.

Neither is there any logical force or value in the suggestion that a "decision" is the judgment of a court and its "opinion" is the mere reason for its judgment. The words "decision" and "opinion" are used interchangeably in juridical literature and especially in many of the cases cited above where this provision of the Constitution was under review. By the use of the word "decision" the Constitution-makers plainly meant the opinions of the respective courts of appeals in conformity to which their judgment or decretal order was made. The...