Miller v. Kansas City Light & Power Co.

• Decision Date: 19 April 1926
• Docket Number: No. 7120.,7120.
• Citation: 13 F.2d 723
• Parties: MILLER v. KANSAS CITY LIGHT & POWER CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

13 F.2d 723 (1926)

MILLER v. KANSAS CITY LIGHT & POWER CO. et al.^*

No. 7120.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1926.

Martin J. O'Donnell, of Kansas City, Mo. (Henry M. Griffith, George H. Kelly, William Buchholz, and I. B. Kimbrell, all of Kansas City, Mo., on the brief), for appellant.

Ludwick Graves, of Kansas City, Mo. (John H. Lucas and William C. Lucas, both of Kansas City, Mo., on the brief), for appellees.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellant filed his bill of complaint in the District Court for the Western District of Missouri to restrain appellees from prosecuting in the Supreme Court of Missouri their writ of certiorari to review the action of the Kansas City Court of Appeals in favor of appellant and against appellee light and power company, affirming a judgment for the sum of $7,000 rendered in the circuit court of Jackson county, Mo. The history of this litigation is, in brief, as follows:

Upon appeal in the first instance to the Kansas City Court of Appeals, the judgment was affirmed, without consideration of the merits, for the assigned reason that the motion for a new trial was not printed in that part of the abstract of the record headed "Bill of Exceptions." The Court of Appeals, therefore, held that the record before it preserved no assigned error for the overruling of that motion by the state circuit court, and that it was accordingly confined to a consideration of the record proper; finding no error therein, the judgment was affirmed. Appellees thereupon applied to the Supreme Court for a writ of mandamus, which was granted, and the Court of Appeals was thereby directed to reinstate and hear the appeal upon its merits. To this, upon the coming down of the mandate, appellant objected, contending that the Court of Appeals had ruled in accordance with the last previous rulings of the Supreme Court on the subject; that its judgment of affirmance was therefore final, and not subject to review by the Supreme Court in any form; that the judgment thus affirmed was his property and not subject to interference through further proceedings in either the Court of Appeals or the Supreme Court of the state. The Kansas City Court of Appeals, feeling itself bound by the ruling of the higher court, did, however, consider the case anew, and again affirmed the judgment. Thereafter appellees notified appellant of their intention to file an application for a writ of certiorari in the Supreme Court of Missouri to review the said action of the Court of Appeals, and before said application was filed appellant instituted this action to enjoin the filing of said application and the prosecution of the writ. The temporary restraining order in said action was subsequently dissolved and the cause dismissed for want of jurisdiction; thereafter appellees caused a writ of certiorari to issue from the Supreme Court to review the action of the Kansas City Court of Appeals.

The contention of appellant is that, through the original affirmance by the Kansas City Court of Appeals, its judgment became finally his property; that both the Kansas City Court of Appeals and the Supreme Court are without further jurisdiction in the matter; that he is not a party recognized by law to the proceeding thus pending in the Supreme Court, and has no right on certiorari to be heard in the Supreme Court of the United States; that therefore he is about to be deprived of his property without due process of law, contrary to the provisions of the federal Constitution, and more particularly of the Fourteenth Amendment thereto. The District Court granted a preliminary restraining order, and thereafter, on motion, this temporary restraining order was dissolved, and the bill dismissed for want of jurisdiction. From this order and decree, appellant prosecutes this appeal.

The bill of complaint is very explicit, and sets out fully all essential facts upon which the prayer for relief was based, incorporating therein a large part of the opinion of the Kansas City Court of Appeals. The District Court, therefore, had before it all matters necessary to a complete disposition of the questions presented.

Two sections of the Missouri Constitution are involved. Section 6 of the amendment of 1884, dealing with Courts of Appeals, provides that: "The last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals." Section 8, conferring the authority upon which the Supreme Court has assumed, and is now assuming, to act, provides: "The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari."

Construing the latter section the Supreme Court has held: "Under this power, if a Court of Appeals refuses to act, when it should act, we can by mandamus compel it to act. If such a court threatens to act, when it has no lawful authority to act, we can by writ of prohibition stop it from acting, and we maintain, further, that if such court acts, but in so doing goes beyond its constitutional power, and such is apparent upon the face of its record, then by other writ of superintending control — i. e., the writ of certiorari — we can have their record certified to this court and quashed." State ex rel. v. Robertson, 264 Mo. 661, 675, 175 S. W. 610, 612.

It is further held that the Supreme Court, in the exercise of its superintending control over inferior courts, including the Courts of Appeals, can by mandamus compel such courts to hear and determine a case within their jurisdiction; that the Constitution grants this power, which has been long and consistently exercised, and in such exercise the Supreme Court, from the record presented, determines the facts for itself, and is not bound by the finding of the Courts of Appeals in that regard. State ex rel. Field v. Ellison, 277 Mo. 46, 209 S. W. 107; State ex rel. v. Broaddus, 239 Mo. 359, 143 S. W. 455; State ex rel. v. Broaddus, 210 Mo. 1, 108 S. W. 544; State ex rel. v. Smith, 172 Mo. 446, 72 S. W. 692; Same v. Same, 172 Mo. 618, 73 S. W. 134.

In State ex rel. Field v. Ellison, supra, the court said: "Nor have we permitted such courts by an erroneous conclusion of facts to refuse to exercise their full jurisdictional power. By this I mean, if the court, by erroneously holding that a given condition of facts exists, refuses to exercise its full jurisdictional powers, and we find that such state of facts does not exist, we will by mandamus compel such court to exercise its full jurisdictional power, in the given case. * * * We will find our own facts from the record before them, and apply our judgment of the law, in determining whether or not we will compel them to hear or further hear a given case."

In State ex rel. v. Broaddus, 239 Mo. 359, 143 S. W. 455, supra, it was further said: "If we have power under the Constitution to compel them to exercise a part of their jurisdiction over an appeal, we undoubtedly have the power to compel them to hear all issues properly presented by such appeal, whether such issues be found in the record proper or in the bill of exceptions." This has been the consistent construction of this constitutional provision by the Supreme Court of Missouri.

In issuing the writ of mandamus by which it compelled the Kansas City Court of Appeals to hear the appeal of appellee on the merits (State ex rel. Kansas City Light & Power Co. v. Trimble et al., 303 Mo. 284, 258 S. W. 696), that court held that, under its view of the printed record, it was affirmatively shown that the motion for new trial was incorporated in the bill of exceptions and was abstracted as being therein: that therefore the Court of Appeals had failed to exercise its full jurisdiction in refusing to consider and decide the merits; that this view was in accordance with its previous decisions properly construed. If such is a correct statement of the situation, the jurisdiction of the Supreme Court must be conceded, and its action is not subject to review by the national courts.

To understand the question here presented, some reference must be made to appellate procedure in the Missouri courts. We have to do here simply with a motion for new trial and action thereon, and whether the errors assigned were sufficiently preserved for appellate cognizance. In Missouri it is necessary that errors relied upon in the course of a trial must be preserved by a bill of exceptions signed by the judge and filed in term; among these, those affecting motions for new trial are included. Upon appeal it is incumbent upon appellant to have printed an abstract composed of two parts — an abstract of the record proper and an abstract of the bill of exceptions. In the instant case, in the abstract of the record proper, at page 10, is found the abstract of an entry of record in the trial court showing the filing of a motion for new trial. The appellant went further than this, and set out the motion in hæc verba. This was not required. On page 17 of the printed abstract occurs the heading "Bill of Exceptions." From that point on there is an abstract of the things contained in this bill; at page 108 thereof this recitation is found:

"And afterward, on the 28th day of October, 1921, during the September, 1921, term of said court, and within four days of the rendition of verdict and judgment herein, the defendant filed its motion for new trial, which said motion for new trial appears at pages 10-13 of this abstract of the record, is not here duplicated, but reference is made thereto, which said motion for new trial was on the 29th day of November, 1921, at the November term, 1921, of said court by the court taken up, heard, and considered, and overruled; said order overruling defendant's motion for new trial, appearing at page 14 of this record, is not here duplicated, but reference is made thereto. To which action of the court in...