State ex rel. Chicago, Rock Island & Pacific Railway Co. v. Smith

• Decision Date: 04 March 1903
• Parties: THE STATE ex rel. CHICAGO, ROCK ISLAND and PACIFIC RAILWAY COMPANY v. SMITH et al., Judges
• Court: Missouri Supreme Court

72 S.W. 692

172 Mo. 446

THE STATE ex rel. CHICAGO, ROCK ISLAND and PACIFIC RAILWAY COMPANY v. SMITH et al., Judges

Supreme Court of Missouri

March 4, 1903

Peremptory writ awarded.

W. F Evans, W. M. Williams and Frank P. Sebree, for relator.

(1) The Supreme Court has superintending control over all inferior courts in the state. Constitution, sec. 3, art. 6. And this jurisdiction includes such control by mandamus over the Courts of Appeals by express provision. Sec. 8, Amd. 1884, p 94, R. S. 1899; State ex rel. v. Philips, 97 Mo 331; State ex rel. v. Rombauer, 101 Mo. 504. (2) Mandamus is the proper remedy where an inferior court improperly dismisses an appeal and refuses to hear the cause. State ex rel. v. Philips, 97 Mo. 331; Ex Parte Parker, 120 U.S. 737; Harrington v. Holler, 111 U.S. 796; State ex rel. v. Young, 12 So. 673; State ex rel. v. Foster, 106 La. 425; Cowan v. Fulton, 23 Grattan 579; High's Ex. Legal Remedies (3 Ed.), 151; State ex rel. v. Public Schools, 134 Mo. 311; Ex Parte Parker, 131 U.S. 431; State ex rel. v. Cape Girardeau Court, 73 Mo. 560; Castello v. Circuit Court, 28 Mo. 259; Miller v. Richardson, 1 Mo. 310; State ex rel. v. Neville, 157 Mo. 386. (3) The abstract of the record complied with the statute and the rules of the Court of Appeals and was therefore sufficient. The requirement of both the statute and rule of court are that the abstract shall set forth so much of the record as is necessary to a full understanding of all the questions presented to the court for decision. R. S. 1899, sec. 813; Rule 15, K. C. Court of Appeals. The abstract plainly complied with these requirements. Rickett v. Hart, 150 Mo. 310; Ormiston v. Trumbo, 77 Mo.App. 310; Rickett v. Hart, 73 Mo.App. 647; Badger Lumber Co. v. Knights of Pythias, 157 Mo. 366; Stewart v. Sparkman, 69 Mo.App. 460; Keet Dry Goods Co. v. Brown, 73 Mo.App. 245. (4) If respondent was not satisfied with appellant's abstract he was permitted, under the statute and rule of court above cited, to file such additional abstract as he desired. Failing in this he was bound by the recitals of appellant's abstract. Rickett v. Hart, 73 Mo.App. 647. (5) The additional abstract was filed by appellant three days before the case was heard by the court, and, therefore, before issue had been joined within the meaning of rule 5 of the Court of Appeals. Western Wheel Company v. Kolkmeyer, 91 Mo.App. 288; Reno v. Fitz Jarrell, 163 Mo. 414. Consequently, no consent of the respondent to its filing was necessary, and the Court of Appeals, in dismissing the appeal, overlooked its own construction of said rule and also the construction thereof of the Supreme Court.

Peery & Lyons and Harber & Knight for respondents.

(1) As to the superintending control of the Supreme Court over the Court of Appeals: State ex rel. v. Rombauer, 125 Mo. 635; Bank v. Woeston, 144 Mo. 407; State ex rel. v. Rombauer, 140 Mo. 121. The superintending jurisdiction of the Supreme Court over the Court of Appeals by mandamus, prohibition and certiorari, must be exercised according to the usages and principles of the common law. State ex rel. v. Ct. of App., 99 Mo. 216. (2) Mandamus will not lie. The decision of the Court of Appeals complained of in this proceeding was a final determination by that court in a matter within its exclusive jurisdiction, and it can not be reviewed by the writ of mandamus. State ex rel. v. Smith, 105 Mo. 9; People v. Judges, 1 Mich. 359; U. S. v. Lawrence, 3 Dall. 42; Ex Parte Hoyt, 13 Pet. 290; People v. Judges, 20 Wend. 658; Lewis v. Barclay, 35 Cal. 214; State v. Lighter, 36 La. Ann. 200; Ewing v. Cohen, 63 Tex. 482; Ex parte Brown, 116 U.S. 401; High, Ext. Leg. Rem., secs. 154-173-191; State v. Judges, 105 La. 217; State v. Judges, 47 La. Ann. 1516; State v. Judges, 37 La. Ann. 111; People v. Weston, 28 Cal. 639; Hemstead Co. v. Graves, 44 Ark. 317; Railroad v. Dist. Court, 21 Nev. 409; State v. Wright, 4 Nev. 119; Com. v. Judges, 3 Bin. (Pa.) 273; Coriago v. Dryden, 29 Cal. 307; Elkins v. Athearn, 2 Denio 191; State v. Norton, 29 Kan. 506; Railroad v. Shinn, 60 Kan. 111; Davis v. York Co. Comrs., 63 Me. 396; State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. McKee, 150 Mo. 233; High, Extr. Leg. Rem., secs. 156, 163, 190. It is well setled that where an inferior court has acted judicially, mandamus will not lie to control its action. Trainer v. Porter, 45 Mo. 336; Strahan v. Co. Ct., 65 Mo. 644; State ex rel. v. Ct. of Apps., 87 Mo. 374; State v. Engleman, 86 Mo. 551; State v. Megown, 89 Mo. 156. (3) The dismissal of the appeal was a final judgment. An order that a cause be "stricken from the docket of this court," is not a decision of the court in a cause, but a refusal to proceed; and if it can be redressed it must be by mandamus and not by appeal or writ of error. Astor v. Chambers, 1 Mo. 192. But the judgment in the case at bar dismissing the appeal and taxing the costs against the appellant is a final judgment from which an appeal or writ of error would lie. O'Connor v. Koch, 56 Mo. 253; Bowie v. Kansas City, 51 Mo. 454; State ex rel. v. Neville, 110 Mo. 349; Gray v. Dryden, 79 Mo. 106; Topping v. Grant Mfg. Co., 84 Mo.App. 42; Bohle v. Kingsley, 51 Mo.App. 389. In each of the cases relied upon by relator, the cause or the appeal was "stricken from the docket," and not dismissed as in this case, upon the determination of questions of law involved in the appeal itself; in other words, in those cases the court refused to proceed in the cause or appeal but simply "struck it from the docket." State ex rel. v. Cape Gir. Ct., 73 Mo. 560; State ex rel. v. Phillips, 97 Mo. 499; State ex rel. v. Neville, 157 Mo. 386; Miller v. Richardson, 1 Mo. 310; State ex rel. v. Laughlin, 75 Mo. 36. (4) The abstract of the record in the Court of Appeals was insufficient. (a) It fails to give any part of the record (except the bill of exceptions) in the language of the record, or any abridgment or epitome thereof as required by statute and the rules of the Court of Appeals. (b) It does not set out any final judgment so that the court may see that such a judgment was rendered as an appeal lies from. (c) It fails to show the date of trial; the date of the judgment, or any record entry filing the motion for new trial, or filing the bill of exceptions. (d) It fails in any manner to identify the document presented as a bill of exceptions, as the bill which was filed in the circuit court. (e) Instead of presenting to the Court of Appeals an abstract of the record from which the sufficiency of the alleged judgment and the other proceedings of the trial court could be determined by inspection, which abstract should set out the final judgment and the date thereof; the record entry filing the motion for new trial; the order of the court granting an appeal; the order of the court filing the bill of exceptions, which should under the rulings of this court recite: "which said bill of exceptions is in the words and figures following" (to be followed by the bill of exceptions) -- instead of doing this, counsel for appellant presented to the Court of Appeals a mere running statement of their conclusions as to what the record showed, and as to what the court and the parties did. That such an abstract of the record is not a compliance with the statute or the rules of the Court of Appeals is, we think, established by the following Missouri cases: Nolan v. Johns, 126 Mo. 167; Jayne v. Wine, 98 Mo. 404; Butler Co. v. Grady, 152 Mo. 441; State ex rel. v. Reynolds, 82 Mo.App. 152; Halstead v. Stone, 147 Mo. 649; Bram v. Miller, 67 S.W. 714; Nold Lum. Co. v. Easton, 67 S.W. 934; Hamilton B. S. Co. v. Williams, 91 Mo.App. 511; Upton v. Castleman, 67 S.W. 707; Westheimer v. McEnerny, 67 S.W. 725; Campbell v. Stanberry, 68 S.W. 587; Mills v. McDaniels, 59 Mo.App. 331; Dixon v. Thomas, 91 Mo.App. 364; Jaco v. Railroad, 68 S.W. 380; State v. Rolly, 135 Mo. 677; Labette v. Thompson, 83 Mo. 199; Robertson v. Boyd, 68 S.W. 976; Reno v. Fitz Jarrell, 163 Mo. 411; Cooper v. Maloney, 162 Mo. 684; State v. Batty, 166 Mo. 561; West Stor. Co. v. Glassner, 150 Mo. 426; Lawson v. Mills, 150 Mo. 428; Dawson v. Mack, 86 Mo.App. 120. The additional abstract is of the same general tenor as the original, and subject to several of the objections already indicated. By rule 5 of the Court of Appeals, "No suggestion of diminution of record in civil cases will be entertained by the court after joinder in error, except by consent of parties." It has been repeatedly held that where the appeal is taken by the short method, the printed abstract is the record. Hence, it follows that there could be no suggestion of diminution after error joined by the service and filing of briefs and abstract. Reno v. Fitz Jarrell, 163 Mo. 411; Ortt v. Leonhardt, 68 S.W. 577. Where an abstract of the record is insufficient, appellant can not file an additional abstract after the defects in the original are pointed out in the respondent's brief. Bank v. Davidson, 40 Mo.App. 421; West W. S. Co. v. Kolkmeyer, 91 Mo.App. 286; Jackson v. Railroad, 85 Mo.App. 443.

OPINION

In Banc

Mandamus.

BRACE J.

-- This is a proceeding by mandamus to compel the judges of the Kansas City Court of Appeals to set aside its order dismissing the appeal in a case pending in said court, and to require them to reinstate the cause on its docket, and to proceed to hear and determine the same.

There is no dispute about the facts. At the December term, 1900, of the circuit court of Gentry county, James W. Albin, by guardian, obtained judgment against the relator for the sum of one thousand dollars, from which judgment an appeal was taken by the relator to the Kansas City Court of Appeals, in which, in due time, relator filed "a certified copy of...