State ex rel. Allen v. Judges of the St. Louis Circuit Court

• Decision Date: 31 October 1867
• Citation: 41 Mo. 574
• Parties: STATE ex rel. HENRY C. ALLEN, Relator, v. THE JUDGES OF THE ST. LOUIS CIRCUIT COURT, Defendants.
• Court: Missouri Supreme Court

41 Mo. 574

STATE ex rel. HENRY C. ALLEN, Relator,

v.THE JUDGES OF THE ST. LOUIS CIRCUIT COURT, Defendants.

Supreme Court of Missouri.

October Term, 1867.

Petition for Mandamus.

Ladue and Birge, for relator.

I. The Supreme Court should grant a writ of mandamus where the is no other legal remedy or means of enforcing a right which the applicant is legally and equitably entitled to, and which is legally demandable of the person to whom the writ is directed--Tap. on Mand. 29.

II. The Circuit Court, in this case, by refusing to grant a motion to enter judgment in accordance with the mandate of the Supreme Court, has subjected itself to a writ of mandamus commanding them to do so--the same being a proper motion and in accordance with the chancery practice--7 Paige Ch. 108.

III. After a cause in chancery has been heard below on bill, answer, and proof, and no exceptions taken or questions of law reserved by either party, and cause appealed to Supreme Court, and judgment below reversed on a review of the facts, and cause remanded, to the court below, for further proceedings, in accordance with the decisions of the Supreme Court; the court below cannot legally permit a rehearing of the cause, but should render judgment according to the decision of the Supreme Court--6 Wis. 295; 7 Wis. 100; 4 Sandf. Ch. 369; 5 Hill (N. Y.). 507; 1 John. Ch. 189; 4 Paige Ch. 409; 6 Id. 473; 2 Id. 45; -- Hard. (Ky.) 447; 1 Har. (Del.) 413; 12 Sm. & M. 513; 15 How. (U. S.) 459, and cases cited; Sto. Eq. Pl. § 414.

IV. In equity cases, where the whole issue has been passed upon by the appellate court and the judgment of the court below affirmed or reversed, no rehearing will be granted, unless it appears by affidavit or proof, that the new evidence has been discovered which could not have been produced at the former trial, which, if it had been produced and allowed, would have been sufficient to have changed the result, or that something new had transpired, since the former hearing, which would have changed the result; and it must appear, that the facts are sufficiently clear and strong to maintain a bill of review, in case a final decree had been entered--3 Sto. R. 298-325; 5 Mass. C. C. 312; G. S. 1865, p. 549, §§ 41, 44 & 46.

Sharp & Broadhead, for defendants.

When we look to the statute to learn the legal effect and meaning of the decision of this court, it will be seen that by § 41, p. 549, G. S., that the court “in appeals or writs of error shall examine the records and award a new trial, reverse or affirm the judgment or decision of the Circuit Court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law.”

Sec. 44 provides, the court, “upon the determination of any cause, in appeal or error, may award execution to carry the same into effect, or may remit the record with their decision thereon to the court from whence the cause came, and such determination shall be carried into execution by such court.”

Thus, by § 41, the court may either affirm or reverse and remand for another trial, or give judgment itself, either, as it thinks just and right. And, by § 44, if it gives judgment itself, it may either award execution, or remit the record with its decision thereon to the Circuit Court to execute the judgment which has been rendered.

If this court, when it heard the case on appeal at the last term, had given judgment (as it might have done if it considered the case in a proper condition therefor, and the law and ends of justice carried out thereby), it would, as required by law, either have awarded execution, or remitted the record to the Circuit Court, with an order to execute such judgment. But neither, and nothing of the kind, was done; it only reversed the decision of the Circuit Court and remanded the cause for further trial; it did not render any judgment.

The opinion states that the court below ought to have rendered a different decision, on the case, than the one that it did, and therefore, it reverses that decision and remands the case to that court; but no judgment is rendered by this court, no execution awarded, nor the transcript remitted, with orders to execute any judgment. But when the decision of the court below was reversed and the cause remanded, what was it remanded for? The mandate of the Circuit Court says plainly--“for further proceedings in conformity with the opinion of this court.” The Circuit Court must try the case upon the rules, and in conformity with the declarations of the law, laid down by this court, and if no other state of facts appears that was seen by the record here then declare certain deeds fraudulent; this and nothing else could the Circuit Court do under the decision and mandate. Not only was no judgment rendered by this court and no execution awarded, no order to the court below to execute any judgment, no order remitting the record to the Circuit Court, but the opinion of this court shows that no such thing was intended; for its language is that the court below, on the facts before it on the former trial, ought to have rendered a different judgment, and its judgment is reversed--no order that it shall render and execute any kind or form of judgment. The mandate of this court to the Circuit Court follows the opinion; it remands the cause to that court for trial, for further proceedings, in conformity with the opinion.

We submit, then, that the Circuit Court properly refused the prayer of the motion, and, under the law, the opinion of this court, and the mandate; it could not and cannot take any other course than proceed to try the cause in conformity with the opinion of this court. Such has been the universal and uninterrupted practice and construction of the courts and bar of this State from the earliest existence of the State. The statute of Wisconsin differs from ours--Stat. of Wis, 1858, p. 639, §§ 6 & 7.

If at the same term this case was heard here, while this court had the whole case before it, it could, if applied to, order the court below to enter judgment and specify in its order what judgment to render; but this was not done or applied for. Now, this mandamus is asked for to compel the court below to enter a judgment when it was not ordered to do so, and the mandate to do it did not require it or authorize it under the statute; the court below has not refused to carry out any order of this court, and is discharging its duty.

HOLMES, Judge, delivered the opinion of the court.

This is a petition for a mandamus upon the St. Louis Circuit Court. It is stated that upon the filing of the mandate from this court in the case of Allen v. Berry et al., 40 Mo. 282, the petitioner moved the Circuit Court for judgment in said cause according to the deeision of this court; that the motion made at the special term was reserved for a hearing at the general term, and was certified back with instructions to deny the same, and that thereupon he renewed his motion at the special term, and the same was overruled; wherefore he prays a mandamus to said court to compel them to grant said motion.

The judges make return “that it is not the practice of the court to enter up judgment without a rehearing of the cause, where it has been reversed and remanded, according to the judgment and mandate of the Supreme Court in such cases, and that there has been no such rehearing of the cause.” The case is submitted on a demurrer to this return.

The case of Allen v. Berry et al. was a suit in equity, and upon a hearing of the cause in this court on appeal from the St. Louis Circuit Court, the judgment was reversed and the cause remanded. No other decree was rendered in this court. No special directions were given in relation to further proceedings in the court below, beyond the questions determined and the principles laid down in the opinion.

The petitioner insists that the court below shall be required to enter up judgment for the plaintiff in said cause, according to the decision of this court, without opening the case for further evidence, and without a rehearing in that court.

This motion proceeds upon an entire misconception of the laws and practice in this State in equity cases. The statute of 1855, relating to practice in the Supreme Court; provided that this court in “appeals, or writs of...