State ex rel. Bayha v. Philips

• Decision Date: 18 February 1889
• Parties: The State ex rel. Bayha v. Philips et al., Judges Kansas City Court of Appeals
• Court: Missouri Supreme Court

10 S.W. 855

97 Mo. 331

The State ex rel. Bayha v. Philips et al., Judges Kansas City Court of Appeals

Supreme Court of Missouri

February 18, 1889

Writ awarded.

Gage Ladd & Small for relator.

(1) This court has superintending control over the courts of appeals by mandamus, etc.; Amend. Const. sec. 8; Acts 1883 p. 216. (2) The Kansas City court of appeals exercised appellate jurisdiction solely in the case of Bayha v. Taylor and the only duty of the court was "to examine the record 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." R. S., sec. 3376. (3) The court, by entertaining the motion, took cognizance of matters outside the record in the case, constituting no part of its appellate jurisdiction; matters of original instead of appellate jurisdiction. (4) The court, by sustaining the motion refused to perform the plain duty imposed upon it by law in the premises. (5) When a court, exercising either original or appellate jurisdiction, dismisses a case pending before it, for reasons insufficient in law, it will be compelled by mandamus to reinstate and decide it. Astor v. Chambers, 1 Mo. 191; Miller v. Richardson, 1 Mo. 310; Castello v. Circuit Court, 28 Mo. 259; Ex parte Cox, 10 Mo. 742; State ex rel. v. Court of Common Pleas, 73 Mo. 560; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Knight, 46 Mo. 83. (6) The matters contained in the motion of respondents in the court of appeals constituted no bar to the prosecution by Bayha of his appeal, and no release by him of the errors alleged and assigned in the case. It did not amount to a release or waiver of errors founded upon any settlement or adjustment of the claim, as was the case of Carson's Adm'r v. Suggett's Adm'r, 34 Mo. 364.

Lathrop & Smith and Karnes & Krauthoff for respondents.

(1) A ruling dismissing an appeal cannot be reviewed on mandamus. High Ext. Leg. Rem. [2 Ed.] secs. 173, 191, 247; Railroad v. Franks, 55 Mo. 325; State v. Lubke, 15 Mo.App. 152, 172; s. c., 85 Mo. 338; Potter v. Todd, 73 Mo. 101; Ex parte Johnson, 25 Ark. 624; Goheen v. Meyers, 18 B. Mon. 423; State ex rel. v. Court of Appeals, 87 Mo. 374; People v. Weston, 28 Cal. 639; Treadman v. Wright, 4 Nev. 119; School District v. Circuit Judge, 49 Mich. 432; Ewing v. Cohen, 63 Tex. 482; Hempstead County v. Grove, 44 Ark. 317. Mandamus will not lie to compel a court to dismiss an appeal, even though the ruling of the inferior court on the motion will be final, and there is consequently no other remedy. Rex v. Justices, 2 Chitty, 257; Miltenberger v. County Court, 50 Mo. 172. (2) The respondent court has acted; it has rendered a judgment, final in form, and the case mentioned in the alternative writ is no longer pending before it, nor subject to any jndgment it might render. High. Ext. Leg. Rem. [2 Ed.] secs. 188, 189; Dunklin County v. District Court, 23 Mo. 449; Trainer v. Porter, 45 Mo. 336, 339; State v. County Court, 68 Mo. 29, 48; State v. Court of Appeals, 87 Mo. 374; Ex parte Schwab, 98 U.S. 240; Ex parte Perry, 102 U.S. 183, 186. Mandamus is never granted "for the purpose of undoing what has been done." Ex parte Burtis, 103 U.S. 238; Ex parte Nash, 15 Q. B. 95; People v. Judges, 20 Wend. 658; Elkins v. Athearan, 2 Denio, 195. (3) "The superior court cannot interfere to regulate the practice of an inferior court, because every inferior court is the proper judge of its own practice." Ex parte Morgan, 2 Chitty, 250; King v. Justices, 4 B. & Ald. 86. (4) When the matter of which the plaintiff in any particular case complained is removed, or no longer exists, "the issues of the case are dead;" and the court in which the case is pending will decline to determine merely to see "whether the defendant did have the right claimed. Foucher v. Grass, 60 Ia. 507; Adkinson v. Tabor, 7 Col. 195, 197. So ruled where the suit involved a slave who was emancipated before judgment. Kidd v. Morrison, 1 Phil. Eq. [N. C.] 31; State v. Railroad, 74 N.C. 287; State v. Brown, 1 Mo.App. 449. Where respondent consents in writing that the judgment of the circuit court shall be reformed in the particulars complained of by the appellant, the appeal will not be considered. York County v. Fewell, 21 S.C. 106. (5) When a defendant complies fully and unconditionally with each and every demand of the plaintiff, and pays all the costs of the case, he is entitled to a discontinuance of the action. (6) This right can be exercised at any time before the rendition of final judgment. The principle on which the proceeding depends is such that the court will make the order of its own motion and though both parties should ask for a decision. Groves v. Richmond, 53 Ia. 570. Want of pecuniary interest in the plaintiff is a good reason for such an order. Block v. Barton, 27 La. An. 89. This will be done without regard to time, before or after submission. Ditch v. Sennott, 116 Ill. 288. Whenever the fact is brought to the attention of the court. Hoskins v. Lord Berdsley, 4 Term R. 402; In re Elsam, 3 Barn. & Cres. 597. (7) The superintending control vested in the supreme court over the courts of appeal, does not extend to control the exercise of its ordinary judicial functions. "Where the decisions of the St. Louis court of appeals are final, they are clothed with all the majesty of the law which surrounds those of the supreme court." Missouri v. Lewis, 101 U.S. 22, 33.

Sherwood, J. Barclay J., not voting.

OPINION

Mandamus.

Sherwood J.

-- The relator, John Bayha, brought a suit in the circuit court of Jackson county against William Taylor and the Armour Brothers Banking Company, asking for judgment declaring null and void two tax-bills issued by the city engineer of the City of Kansas, against property owned by Bayha, to Taylor, in payment for the construction of a district sewer, and held by the banking company as collateral security. Bayha claimed in this suit that these tax-bills were invalid, because the city had no authority under its charter to cause the sewer to be built, but that they were, nevertheless, an apparent lien against the property and a cloud upon his title. The circut court dismissed the petition upon a hearing of the case, and Bayha appealed to the Kansas City court of appeals. Errors were assigned and joined in by the parties, and the case was duly submitted to the court for its decision, and was taken under advisement. While the case was in this position, the respondents, Taylor and the banking company, filed in court, against the objections of Bayha, their suggestion and motion, stating that they had caused the tax-bills, regarding which complaint was made in the suit, to be cancelled by the city engineer in his office, and had deposited them, marked paid, with the clerk of the court for the use of Bayha, and had paid all the costs which had arisen or might arise in the suit, and moving the court to abate and strike from the docket Bayha's appeal. Bayha resisted the motion, and showed by affidavits that he had not paid the tax-bills, and that he rejected and refused to accept the proffered satisfaction; that he was prosecuting the suit in the interest of other property-owners against whose property similar bills had been issued, and who were contributing to the expenses of the suit, as well as in his own behalf, for the purpose of obtaining an adjudication upon the legality of the proceedings under which the sewer was built; that the object of his suit was to have the bills cancelled as void ab initio, and that he was entitled to an adjudication upon that issue, and that the recent offer of satisfaction was not equivalent to such adjudication, and that he had, during the pendency of the suit, conveyed the property and covenanted generally that the same was subject to no incumbrance whatever, and he demanded that the court proceed and decide the case. The court, however, sustained the motion, and dismissed the appeal.

This is an original proceeding in this court, by which it is sought to compel the Kansas City court of appeals to reinstate a cause which it had refused to hear and determine, and had stricken from its docket. The statement heretofore made sufficiently gives the facts which are to form the basis of the present adjudication. Those facts present for determination two salient questions: First, whether this court, proceeding on the basis of the admitted facts, has the power to control the action of the Kansas City court of appeals in the manner relator demands; and second, whether the facts pleaded by the defendants, in order to induce the action afterwards taken by the Kansas City court of appeals, were such as fully warranted the course taken by that court, and therefore destroyed all ground of complaint on the part of the relator and all occasion for invoking the mandatory authority of this court. These questions, for obvious reasons, will be considered in inverse order.

As already stated, the relator, by his petition filed in the circuit court, sought to have declared void two tax-bills, on the ground that, being apparently valid and apparently a lien upon his property, they were a cloud upon his title. After hearing the cause, the circuit court dismissed the petition, and the relator appealed to the Kansas City court of appeals where the cause was submitted on briefs and argument. After such submission, the defendants pursued the course already indicated, and the point presents itself, whether their action justified the action taken by the Kansas City court of appeals, in striking the cause from the docket.

The subject is not altogether free from difficulty. Cases have been instanced to justify the course taken by the court of appeals. Thus, it has been...