Smith v. Missouri Pac. Ry. Co.

• Decision Date: 23 February 1898
• Parties: SMITH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

44 S.W. 718

143 Mo. 33

SMITH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

SUPREME COURT — JURISDICTION.

The expression of a "doubt" by a judge of the court of appeals as to whether the conclusion reached in the case on appeal can be harmonized with a former opinion of the supreme court is insufficient to confer jurisdiction on the supreme court, under Const. § 6, of the amendment, providing that, when the court of appeals shall render a decision which a judge shall "deem" contrary to any previous decision of the supreme court, it must transfer the case to the supreme court.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by George W. Smith against the Missouri Pacific Railway Company. On appeal the cause was transferred from the court of appeals to the supreme court, and plaintiff objects to the jurisdiction of this court. Remanded to the court of appeals.

Elijah Robinson, for appellant. Scarritt, Griffith & Jones, for respondent.

MACFARLANE, P. J.

The suit is two counts on two bills of lading, issued, as alleged, by defendant to one Theodore Nathan for two car loads of grain, and by said Nathan indorsed and delivered to plaintiff. The circumstances under which the bills were issued and the defenses made to the action need not be stated. On a trial in the circuit court plaintiff obtained judgment for $1,011.58, and defendant appealed to the Kansas City court of appeals. In that court the case was twice heard. The first hearing resulted in a reversal of the judgment. Upon a rehearing, which was granted on the motion of plaintiff, the judgment was affirmed. The opinion was written by Judge Ellison, the other judges concurring therein, Judge Gill using this language: "While concurring in the foregoing opinion of Judge Ellison, I yet feel doubtful as to whether or not the conclusion reached can be harmonized with Bank v. Laveille, 52 Mo. 380. In order, then, that a question so important to our commercial interests may be settled in this state, I have concluded to ask that the case be certified to the supreme court." The judgment of the court, after declaring an affirmance, has this further judgment: "It is further considered and adjudged by the court that, in accordance with the constitution, one of the judges is doubtful whether or not the conclusion reached can be harmonized with the opinion of the supreme court in the case of Bank v. Laveille, 52 Mo. 380, and therefore it is ordered certified to the supreme court for its determination." On this order the case is transferred to this court. Plaintiff objects to the jurisdiction of this court to review the proceedings of the circuit court, and files a motion to remand the cause to said court of appeals. The ground of the motion is that the reason for the transfer given by the court of appeals, in its order, is insufficient to confer jurisdiction on this court. The case is clearly one within the jurisdiction of the court of appeals. That being so, the constitution makes but one provision under which this court can acquire jurisdiction of the appeal. Section 6 of the amendment to the constitution, relating to the courts of appeals, provides: "When any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals, or the supreme court, the said court of appeals must, of its own motion, pending the same term and not afterwards, certify and transfer said cause or proceeding and the original transcript therein to the supreme court and thereupon the supreme court must rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the supreme court on any question of law or equity shall, in all cases, be controlling authority in said court of appeals." This section has been brought before this court for construction on several occasions, in which an effort was made, by mandamus to compel the court of appeals to certify a cause to this court. State v. Philips, 96 Mo. 571, 10 S. W. 182; State v. Smith, 107 Mo. 527, 16 S. W. 401, and 17 S. W. 901; State v. Rombauer, 125 Mo. 635, 28 S. W. 968. This is, we believe, the first case in which the sufficiency of an order of transfer, made by the court of appeals, under the provisions of said section, has been questioned. To give this court jurisdiction, it must appear from the record that one of the judges of the court of appeals deemed the decision therein rendered contrary to a previous decision of one of the courts of appeals or the supreme court. This record shows that "one of the judges is doubtful whether or not the conclusion reached can be harmonized with the decision of the supreme court" in a case named. The order follows the opinion of Judge Gill, who says: "While concurring in the foregoing opinion of Judge Ellison, I yet feel doubtful as to whether or not the conclusion reached can be harmonized with Bank v. Laveille, 52 Mo. 380." The constitution evidently requires that one of the judges must conscientiously form an opinion that the decision rendered is contrary to a prior decision, and this opinion should appear upon the record. It is said in State v. Philips, supra: "It is for...