Missouri, Kansas & Texas Railway Co. v. Smith

• Decision Date: 20 February 1900
• Citation: 55 S.W. 470,154 Mo. 300
• Parties: MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Petitioner, v. SMITH et al., Judges
• Court: Missouri Supreme Court

55 S.W. 470

154 Mo. 300

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Petitioner, v. SMITH et al., Judges

Supreme Court of Missouri

February 20, 1900

Writ denied.

Geo. P B. Jackson for relator.

(1) The court of appeals transcended its constitutional power when it undertook to decide the case of Elliott v. Missouri, Kansas & Texas Railway Company in disregard of and contrary to the ruling of this court in the case of Brown v Baldwin, 121 Mo. 126, which is the last ruling of the Supreme Court upon the questions of law and equity involved in the case before the court of appeals, which was therefore controlling authority in that court. This reason should not be confused with the point involved in various cases where efforts have been made to have cases certified from the courts of appeals because of the dissent of one of the judges of such court, or because one or all of the members of the court of appeals may have regarded the decision of the majority as being in conflict with a prior ruling of the Supreme Court. The various cases that have been decided have simply involved a proper construction of the first part of section 6 of the amendment of 1884 to the constitution, and those cases go no farther than to determine when it becomes the duty of the court of appeals to certify the case because of such view entertained by one or more members of that court. What is now contended in this case is, that a right guaranteed to this petitioner by the constitution has been violated by the action of the court of appeals, and that the only way in which the petitioner can be protected in that right is through the exercise of the superintending control of the Supreme Court over the court of appeals. Sparks v Indemnity Co., 61 Mo.App. 109; Bank v. Woesten, 144 Mo. 407; Smith v. Railroad, 143 Mo. 33; Schafer v. Railroad, 144 Mo. 170. (2) "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 6; State ex rel. v Rombauer, 101 Mo. 505. "There is another change which is not so clearly expressed by the amendment, but which in our opinion is sufficiently obvious, namely, that this court is still the final arbiter in all those controversies which are specified in section 12, no matter in what court they may originate. Before the amendment this court had appellate jurisdiction in all cases involving the construction of the constitution and the other specified cases, including cases involving the title to an office under this State. It had such jurisdiction though the case originated in the court of appeals. There is nothing in the amendment which can by any fair construction be said to take away from this court appellate power in all such cases." State ex rel. v. Rombauer, 105 Mo. 107; State ex rel. v. Philips, 97 Mo. 340; State ex rel. v. St. Louis, Court of Appeals, 99 Mo. 221; High on Extr. Leg. Rem., sec. 781; Quimbo Appo v. People, 20 N.Y. 531; 2 Spelling's Extr. Relief, sec. 1719. (3) The second reason for granting a writ of prohibition in this case is that the case of Elliott v. Railroad, involves a federal question, and the jurisdiction is therefore in this court. Const., art. 6, secs. 12, 27; Amendment of 1884, secs. 4, 5; State v. Chandler, 132 Mo. 164. In the case of Elliott v. Railroad Company, the defendant there, by its answer, and then by its instructions, as well as by the evidence in the case, contended, and in its subsequent briefs in the court of appeals insisted, that the liability, if there was any on the part of the defendant, arose out of the proceeding in the federal court, and arose from the compliance with the order of that court made in conformity with and in obedience to the laws of Congress and the rules of practice in federal courts, which have the force of statutes. There was thus involved the construction of an authority exercised under the United States; and a proper determination of the rights and liabilities arising out of and depending upon this exercise of authority, and of the administration of justice in the federal courts in pursuance of the federal laws, involves the application of the proper rules of law to such rights and liabilities. It involves the consideration of any immunities that may be enjoyed or arise under such laws, hence the question is presented and is involved in the case in such a way as to require its determination; and therefore in such a way as to vest the jurisdiction of the case in the Supreme Court. Northcutt v. Eager, 132 Mo. 265; Parker v. Zeisler, 139 Mo. 298. Recently, during the present term, Division One, of this court transferred two cases, Edwards v. M., K. & E. Ry. Co. and Griffin v. Same, to the Kansas City Court of Appeals, because those cases did not, in the judgment of the court, involve title to real estate in such manner as to confer jurisdiction upon this court, yet no objection to the jurisdiction was made by anyone in the case. The court of its own motion inquired into cases in order to determine, as a preliminary matter, whether or not it was properly vested with jurisdiction to decide the cases. Railroad v. Iowa Homestead Co., 123 U.S. 552; Carson v. Dunham, 121 U.S. 421. (4) The law in force in the jurisdiction where the bond is made at the time it is made is to be considered as incorporated in it and as a part of the contract; where there is no statute prescribing the conditions of the bond they are determined by the rules of court which take the place and have the effect of statutes, and such a bond is a part of the record in the case, and in the court in which it is given, and therefore the law and the rules of practice in the federal court entered into and became a part of the bond sued on in the case of Elliott v. Ry. Co. Mix v. Vaile, 86 Ill. 40; 2 Am. and Eng. Ency. of Law, 466; Murfree on Official Bonds, sec. 401; Newell v. Partee, 10 Humph. (Tenn.) 325; Pickett v. Boyd, 11 Lea (Tenn.) 498; Nolan v. Johns, 27 Mo.App. 502; Rubelman Hdw. Co. v. Greve, 18 Mo.App. 6; Teasdale v. Jones, 40 Mo.App. 243; Kinealy v. Stead, 55 Mo.App. 176.

W. M. Williams and John Cosgrove for respondents.

(1) The circuit court of Cooper county in suit on the injunction bond necessarily decided upon the evidence that the services rendered by Elliott's attorneys were rendered in obtaining a dissolution of the injunction, and not in defending the main suit. The Kansas City Court of Appeals, after a thorough examination of the record in that case and lengthy argument by counsel, held that the circuit court of Cooper county decided correctly. The issue was one of fact and this court will not undertake to review the action of the trial court or the judgment of the Kansas City Court of Appeals in this proceeding. (2) The right to sue in a state court upon an injunction bond given in a federal court is no longer an open question. Hannibal & St. J. Ry. Co. v. Shipley, 1 Mo.App. 254; Walsh v. Lackland, 8 Mo.App. 122; Mitchell v. Hawley, 79 Cal. 301; Aikins v. Leathus, 40 La. Ann. 23; 2 Suth. on Damages (2 Ed.) sec. 525; Elliott v. Ry. Co., 2 Mo.App. Rep. 151; Meyers v. Block, 120 U.S. 206. (3) Counsel fees are allowed as damages on the dissolution of injunctions in this state. Brownlee v. Fenwick, 103 Mo. 420; Hammerslough v. Building Ass'n, 79 Mo. 80; Shores v. Shores, 34 Mo.App. 208; Holloway v. Holloway, 103 Mo. 285. (4) Elliott could not maintain a suit on the injunction bond until there was a final decree in the case in which the injunction was granted. Cohn v. Lehman, 93 Mo. 574; Neiser v. Thomas, 46 Mo.App. 47. (5) The decision of the Kansas City Court of Appeals in the case of Elliott v. M., K. & T. Ry. Co., is not in conflict with the last previous ruling of the Supreme Court in allowing counsel fees as damages in a suit upon an injunction bond. In Brown v. Baldwin, 121 Mo. 126, the Supreme Court did not hold, or intend to hold, that counsel fees incurred in procuring the dissolution of an injunction, where the facts warranted, could not be recovered as damages in a suit upon an injunction bond. All the Supreme Court decided, or intended to decide, was that upon the facts in that record, counsel fees should not be allowed. The court did not attempt, or intend, to overrule the cases of Brownlee v. Fenwick, 103 Mo. 420; Hammerslough v. Building Ass'n, 79 Mo. 80; Holloway v. Holloway, 103 Mo. 274, and Alliance Trust Co. v. Stewart, 115 Mo. 245. (6) The determination of this question is, by section 6, of the amendment to the Constitution establishing the Kansas City Court of Appeals (Law 1883, p. 216), submitted to that court. The Kansas City Court of Appeals necessarily had to determine that question. The decision in Elliott v. M., K. & T. was concurred in by all of the judges of that court, and its decision is a finality. Bank v. Woesten, 144 Mo. 409. (7) There must be something in the record made in the trial court which raises a constitutional question before the court of appeals can be deprived of its jurisdiction to hear and determine a case properly appealed to that court. The court of appeals can not be shorn of its jurisdiction by the mere assertion of counsel, in a brief, that a constitutional question is involved. Lang v. Callaway, 134 Mo. 491; Nall v. Railroad, 97 Mo. 68; Wabash Ry. Co. v. Siefert, 41 Mo.App. 35. (8) It can not be contended, with any degree of fairness, that because the rules of practice in equity in the United States courts do not allow attorneys' fees as damages on injunction bonds that an allowance of such in a suit in a state court on an injunction bond, given in a federal court, raises a federal question. 2 Foster's Fed. Pract., p. 1005; Johnson v. Reik, 137 U.S. 307.

ROBINSON J. Gantt, C. J., Burgess, Brace, Marshall and Valliant, JJ., concur; Sherwood, J.,...