Mott Store Company v. St. Louis & San Francisco Railroad Company

• Decision Date: 10 February 1914
• Citation: 163 S.W. 929,254 Mo. 654
• Parties: MOTT STORE COMPANY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

163 S.W. 929

254 Mo. 654

MOTT STORE COMPANY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri

February 10, 1914

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Transferred to St. Louis Court of Appeals.

W. F Evans, Moses Whybark and A. P. Stewart for appellant.

Ward & Collins for respondent.

OPINION

In Banc.

GRAVES J.

This cause reaches this court because there is a question between the Springfield Court of Appeals and the St. Louis Court of Appeals, as to which court has jurisdiction thereof. Each court has filed a per curiam opinion, and both are before us. The opinions say about all that can be said upon the respective sides of the controversy. The Springfield Court of Appeals has transferred the case and all the original files to this court, and the sole question for us to determine is as to which court the case should be remanded by us for a trial and determination. We have examined both opinions with interest and care, but we believe that the law of the case lies along the lines of the opinion filed by the Springfield Court of Appeals. We cannot add to that carefully written opinion, and adopt it as the opinion of this court. Such opinion reads:

"This cause was originally appealed from the circuit court of Pemiscot county to the St. Louis Court of Appeals prior to the passage of the act approved March 21, 1913 (Laws 1913, p 204), which took effect June 23, 1913. The St. Louis Court of Appeals, acting under the enactment, transferred the above-entitled cause to this court and filed an opinion on June 24, 1913. The sole question arising at this time is concerning the right of this court to hear and determine the appeal.

"Section 3 of the amendment of 1884 to the Constitution by which the Kansas City Court of Appeals was established, invested power in the General Assembly to create a third court of appeals. Acting under this provision, the General Assembly in 1909 created the Springfield Court of Appeals, giving it a territory comprising thirty-three counties selected from the districts of the St. Louis and Kansas City courts as then established as is set out in section 3926, Revised Statutes 1909. At the same time, by section 3927, Revised Statutes 1909, it was provided (1) that the Springfield Court of Appeals would have jurisdiction of appeals and writs of error in all cases appealed from counties included in said district of which the St. Louis Court of Appeals and the Kansas City Court of Appeals formerly had jurisdiction; (2) that all cases 'now pending' in the two last named courts of appeals arising in counties which had been given to the Springfield district should be certified and transferred to the Springfield Court of Appeals. In 1913 the General Assembly saw fit to increase the territorial jurisdiction of the Springfield Court of Appeals by adding twelve counties eleven of which were taken from the St. Louis district and one from the Kansas City district. Pemiscot county was one of those which were taken from the St. Louis district and added to the Springfield district by this amendment of 1913. This amendment merely added these counties to the territorial jurisdiction aforesaid and further provides the time and place of holding court in the Springfield district. There was no act passed or amendment made providing for the transfer to the Springfield Court of cases 'now pending' on appeal in the other two courts of appeals originating in the counties last added to the Springfield Court of Appeals district. The question here is, does the amendment vest us with jurisdiction over cases which arose in and were appealed from those counties to the St. Louis Court prior to June 23, 1913, the date on which the Act of 1913 took effect.

"The St. Louis Court of Appeals by its opinion of June 24, 1913, holds that such cases must be transferred to this court and accordingly ordered the transfer of the above entitled cause. We are unable to agree with their opinion.

"The failure of the General Assembly to provide in the amendment now under consideration for a transfer of the cases appealed and then pending in the St. Louis Court prior to June 23, 1913, we think clearly shows that it intended that this court would take jurisdiction only of cases arising in those counties subsequent to the taking effect of the act. It will be noted that section 3927, Revised Statutes 1909, of the act creating the Springfield Court, did not stop by giving the court jurisdiction of appeals and writs of error in cases thereafter arising in the counties which had formerly been in the other two districts, but included in said section a provision for the transfer of the cases then pending in those courts, showing clearly to us that the mere changing the territorial jurisdiction of the counties would not change the jurisdiction of the courts concerning those cases which had arisen in those counties prior to the taking effect of that act. The General Assembly in 1909 when creating the Springfield Court evidently thought that it was necessary to provide for the transfer of cases which had already been appealed to the respective courts in the other two districts, because the amendment to the Constitution provides for the creation of a new district, the designation of the time of holding court, the increase or diminution of the pecuniary limit of the jurisdiction of such courts, also empowers the Legislature to 'provide for the transfer of cases from one court of appeals to another court of appeals,' recognizing that something more than the mere establishing or changing of the territorial district is necessary in order that cases then pending in one court might be transferred to another court of appeals.

"Again, the statute (section 3927, Revised Statute 1909) passed in 1909 speaks only as of that date and shows for itself that the General Assembly had in mind only the transfer to the Springfield Court then created of such cases as were 'now pending' in the courts unsubmitted. This section was dealing with conditions and cases at that time. It does not deal with future conditions or future times. This is shown from the fact that it is speaking of the transfer of cases only to the Springfield Court of Appeals. The General Assembly has the right to take counties from the Springfield district and add them to the St. Louis district or to the Kansas City district, but surely no authority could be found in the above statute authorizing this court to transfer cases appealed to this court from the counties thus taken and to transfer them to either the St. Louis or Kansas City Courts, thus showing that section 3927, Revised Statutes 1909, was only intended to cover those cases on appeal at that time. The amendment to the Constitution of 1884 gave the Legislature power in transferring counties from one court of appeals district to another, to also provide for transferring cases then pending in the one court to the other, but the Legislature did not do so in this instance. For the courts to do so is judicial legislation.

"The words 'now pending' were used in section 3927, because in the absence of further legislation no cause could thereafter be pending in the other courts of appeals originating in the counties of the Springfield district. Should there be further legislation placing other counties in the Springfield district or vice versa the Legislature might or might not want to exercise its power to transfer cases then pending in the one court to the other. The jurisdiction of the courts of appeals is under our Constitution territorial as well as of the subject-matter. That is, the cause must go on appeal to that court of appeals within whose territorial district the county is situated and it alone has jurisdiction of the appeal. [State ex rel. v. Nixon, 232 Mo. 496, 134 S.W. 538.] Jurisdiction of an appeal means the right to hear and determine the appeal. The present case properly went on appeal to the St. Louis Court of Appeals because Pemiscot county was then part of that district and that court unquestionably acquired jurisdiction of the same. That jurisdiction adheres until it is either exhausted by a final determination of the appeal or is taken from it by a valid legislative enactment. That the Legislature did not see fit to do.

"At different times when the jurisdictional amount of...