State ex rel. Caldwell v. Cockrell

• Decision Date: 22 December 1919
• Citation: State ex rel. Caldwell v. Cockrell, 280 Mo. 269, 217 S.W. 524 (Mo. 1919)
• Parties: STATE ex rel. J. M. CALDWELL v. EWING COCKRELL, Judge
• Court: Missouri Supreme Court

217 S.W. 524

280 Mo. 269

STATE ex rel. J. M. CALDWELL v. EWING COCKRELL, Judge

Supreme Court of Missouri

December 22, 1919

Writ denied.

A Musser, M. D. Aber, R. M. Robertson, E. C. Littlefield, J. M Crutchfield, S. J. Caudle, W. L. Chaney, W. E. Suddath and Nick M. Bradley for relator.

(1) It is beyond the power of any court to make rules or take action which comes into collision with either the organic or statutory law.State ex rel. v. Withrow,133 Mo 522;Gormerly v. McGlynn,84 N.Y. 284;Works on Courts and Their Jurisdiction, p. 177;State ex rel Partridge v. Lewis,71 Mo. 170;State v. Underwood,75 Mo. 230;State ex rel. v. Gideon,119 Mo. 94;Calhoun v. Crawford,50 Mo. 458;Purcell v. Railroad,50 Mo. 504;4 Am. & Eng. Ency.Law, 450.(2) Prohibition is the proper remedy when the action of the lower court exhibits evidences of excess of jurisdiction, as well as when exhibiting absolute absence of jurisdiction.State ex rel. v. Withrow,133 Mo. 522;Eppo v. People,20 N.Y. 541;Ward v. Kelsey,14 Abb. Pr. 106;State v. Ridgall, 2 Bailey (S. C.) 560;People ex rel. v. Supervisors,47 Cal. 81.(3) Proceedings and records of any court of record . . . shall be in the English language, . . . in a fair, legible character, in words at length, and not abbreviated.Sec. 3860, R. S. 1909.And the above section is mandatory.State v. Wilson,117 Mo. 570;State v. Scabee,255 Mo. 270.(4) The form of decree prescribed by the court in the case of Scott v. Scott, is not in the English language.Stein v. Meyers,253 Ill. 199.(5) Full entries of the orders and proceedings of all courts of record of each day shall be read in open court in the morning of the succeeding day, except, etc.Sec. 3860, R. S. 1909.(6) A judgment must recite and the records show that process was duly served on defendant, and must disclose the existence of every material fact to give the court jurisdiction.23 Cyc. 767.

James C. Jones for respondent.

(1)"Every clerk shall record the judgments, rules, orders and other proceedings of the court."Sec. 2685, R. S. 1909.(2)"A clerk of a court is a mere ministerial officer, whose duty it is to record only such orders as the court may direct."Kansas City Pump Co. v. Jones,126 Mo.App. 540;LaCoste v. Eastland,117 Cal. 673;Robostelli v. Railroad Co.,34 F. 507;Ramaley v. Ramaley,69 Minn. 491.(3)"The Judge has superintendence and control of manner in which the court records are kept."Sec. 3859, R. S. 1909;Houston v. Williams,13 Cal. 24, 73 Am. Dec. 568.(4)"Every court of record shall have power to punish as for criminal contempt persons guilty of . . . willful disobedience of any process or order lawfully issued or made by it."Sec. 3881, R. S., 1909;Watson v. Williams,36 Miss. 331;Krueger v. Williams,153 S.W. 903;Territory v. Clancy,37 P. 1110.(5)"Circuit courts have inherent power, irrespective of statutory enactment, to promulgate and enforce rules."State ex rel. v. Withrow,135 Mo. 380.(6) Prohibition does not lie in this case.Morse v. Burckhartt,87 Mo. 536;State ex rel. v. Mills,231 Mo. 501;State ex rel. v. Broaddus, 234 Mo. 367.

GOODE, J. Walker, C. J., concurs in separate opinion; Graves, J., concurs in the result in separate opinion in which Blair and Woodson, JJ., concur.

OPINION

In Banc

Prohibition.

GOODE J.

The respondent, Honorable Ewing Cockrell, is Judge of the Circuit Court of Johnson County, and of the circuit courts of the other counties in the Seventeenth Judicial Circuit.The relator, J. M. Caldwell, is Clerk of the Circuit Court of Johnson County, and the purpose of this case is to prohibit the respondent, as judge of said court, from going further with a proceeding commenced by respondent against relator for a contempt in refusing to record two specific entries he was ordered by respondent to record, and for recording instead two other and different entries not directed by the court.One of the entries was directed to be recorded in the journal of the court's proceedings on the fifteenth day of October, 1917, in the case of Laura L. Maupin against Southern Surety Company, No. 5381, which entry was as follows: "Defendant by attorney files answer."Instead of recording said entry as directed, the clerk recorded the following: "Answer filed.Now at this day comes the defendant aforesaid, by its attorney, and files its answer to plaintiff's petition herein."The second entry relator refused to record as directed was a judgment of divorce rendered the ninth day of October, 1917, and to be entered on the journal of the proceedings of the court that day, namely, the judgment in the case of Georgia Scott against Vernon Scott, No. 5356.The entry of judgment to be made as directed by the court was this:

(A) "Plaintiff makes proof of publication in (b)Johnson County Democrat.Evidence submitted.Judgment for plaintiff on grounds [(c)defendant has absented himself without reasonable cause for more than a year] with restoration of former name [(d)Georgia Ann Hightower.]

"The true and complete record herein is the matter under heading Dvn. 2 in Record Book 38, beginning at page 311 incorporated into the above record and entry with the matter contained in the above alphabetically numbered brackets inserted in the correspondingly numbered brackets under the said heading and all written and construed as provided by rules and order of courtSeptember 3, 1917, as shown in Record Book 38 beginning at page 296."

(As it will be necessary to refer again to this form, we have designated it by the letter "A".)

Instead of the foregoing, relator recorded the following entry:

"Now at this day comes the plaintiff herein, in person and by her attorney, and files proof of publication of the order of publication of notice of this suit heretofore made in this cause; and said defendant although thereby duly summoned herein more than thirty days before the first day of this term of this court, and being now solemnly called, comes not, but herein makes default, and this cause being now called for hearing is taken up and submitted to the court, upon the petition, proofs and the evidence of credible witnesses; and the court, after seeing and hearing and duly considering the same, doth find, that said defendant has been duly served with process herein by publication of notice of this suit and all the objects thereof, for four weeks successively in the Johnson County Democrat, a weekly newspaper published in the County of Johnson and State of Missouri, the last insertion thereof being more than thirty days before the first day of this term of this court; and that said defendant has failed to appear, answer or plead herein, but has wholly made default, and plaintiff's petition stands as confessed by said defendant.The Court further finds that on or about the 15th day of January, 1911, the plaintiff was lawfully married to the defendant, and continued to live with him as his wife from and after said date until the first day of March, 1911; that plaintiff faithfully demeaned herself and discharged all her duties as the wife of the defendant, and at all times treated him with kindness and affection, but that defendant wholly disregarding his duties as the husband of the plaintiff, did on the first day of March, 1911, without any cause or excuse absent himself from plaintiff and ever since has and still does so absent himself without any cause whatever for more than one whole year next before the filing of her petition herein.The court further finds that the said plaintiff is now a resident of Johnson County, Missouri, and has lived in the State of Missouri more than one whole year next before the filing of her petition in this suit; that the plaintiff is a person of good moral character and is the innocent and injured party and entitled to the relief prayed.

"It is therefore ordered, adjudged and decreed by the court here, that the bonds of matrimony contracted by and between the said plaintiff and defendant, be and hereby are, set aside and for naught held; that the said plaintiff be, and hereby is divorced from the said defendant and that her former name of Georgie Ann Hightower be restored to her and that the plaintiff pay the costs of this suit."

Relator in his petition and suggestions for the writ of prohibition does not specifically admit or deny that he had refused to record the two entries that he was charged in the citation to him in the contempt proceeding with refusing to enter.Neither does he admit or deny having recorded the two different entries he is charged in said citation with having recorded contrary to the court's command.But he admits that he had refused continually to comply with the orders of respondent, as judge of said court, in respect of the forms in which the proceedings of the court should be recorded and that he had refused to comply with a body of rules the court had prescribed to regulate the recording of entries.For the clerk's disobedience in refusing to record the particular entries set out above and by the respondent directed, and substituting other entries not directed by the respondent, the proceeding in contempt sought to be prohibited was commenced by a citation issued by respondent to relator, requiring the latter to appear before the former as judge of said Johnson County Circuit Court and show cause, if any there was, why relator should not be punished for contempt.Thereupon relator applied to this court for the writ of prohibition, and pursuant to his application a preliminary rule was issued, commanding respondent to appear here and show cause, if any he had, why the writ should not be granted.

The petition of relator states that, on September 3, 1917, and during the June term of said circuit court, respondent promulgated a...