State ex rel. Frank v. Smith

• Decision Date: 31 March 1869
• Parties: STATE ex rel. GEORGE FRANK, Petitioner, v. IRWIN Z. SMITH, Circuit Judge, Respondent.
• Court: Missouri Supreme Court

44 Mo. 112

STATE ex rel. GEORGE FRANK, Petitioner,

v.IRWIN Z. SMITH, Circuit Judge, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Application for mandamus.

Respondent, in his return, after setting forth the twelfth and sixteenth rules of court, proceeded as follows:

“And the respondent further shows that the appeal of the said Frank was not prayed for by him, as required by said rule numbered twelve, within five days after the rendition of the judgment overruling his motion for a rehearing on the 25th day of February, 1869; nor was his bill of exceptions presented within five days after said day to the attorney for the opposite party, although the said Frank did show cause why his time should be extended, and it thereupon was extended by the court until the 15th day of March, 1869, as will appear by the records of said Circuit Court; yet the said Frank did not present his bill of exceptions within the time so extended, and did not show any cause whatever why his time for praying for an appeal should be further extended, nor any cause whatever why his time for presenting his bill of exceptions should be further extended, but did, after the expiration of the time so extended, to-wit: on the 17th day of March, 1869, present his bill of exceptions to the court, insisting to have the same signed by your respondent, and insisting that the said rules numbered 12 and 16, above recited, were in contravention of law, and null and void. Wherefore, your respondent prays the judgment of this court whether he should sign said bill of exceptions and grant said appeal prayed for by said Frank.”

Thomas S. Espy, and Vorhies & Mason, for petitioner.

I. Rules 12 and 16 of the Circuit Court are in derogation of section 28 of Gen. Stat. 1865, p. 675, which provides that “exceptions may be written and filed at the time, or during the term of the court at which it is taken, and not after.” Section 14 of the act reorganizing the Circuit Court (Gen. Stat. 1865, p. 889) confers no power to make rules that may conflict with the laws in any way, but only to prescribe rules “to procure uniformity, regularity, and accuracy” under the law, in accordance with the provisions of section 14, chapter 133, Gen. Stat. 1865. These objects can be attained in perfect conformity to section 28 of the practice act.

II. The rules of the Circuit Court are an abridgment of a right, and without clear and express authority, legitimately exercised, can not be allowed to stand in the way of a right secured by the general law.

III. If the Legislature had intended, in the act of reorganization, to repeal any of the general law, or to confer upon the Circuit Court a power to make rules that would involve the setting aside any of the general law, such power could have been given in specific language and in specific terms.

IV. The twenty-eighth section is not repealed by necessary implication of law. There is no antagonism between it and the act of reorganization. And if there is any repeal by implication, whatever in the act of reorganization is antagonistic to the twenty-eighth section was repealed by the subsequent enactment of the General Statutes.

V. The power to make rules under the act of reorganization, in opposition to existing laws, is the power of legislation--a power which the Legislature never intended to confer upon the court, and could not if it would.

VI. There can be no necessity for rules 12 and 16. The peculiar organization of the Circuit Court does not require them.

Dryden, and Decker, for respondent

WAGNER, Judge, delivered the opinion of the court.

The relator asks for a peremptory writ of mandamus against the respondent, who is one of the judges of the Circuit Court, to compel him to sign a bill of exceptions. The cause is submitted on a demurrer to the return, and the only question on which the judgment of this court is asked is whether the rules of the said Circuit Court in prescribing the time within which the exceptions shall be made out and presented to the judge at special term for his signature, in order to take a case to the general term, are valid and binding. It is insisted by the counsel for the relator that the rules adopted by the Circuit Court are in contravention of the statute, and therefore have no force, and should be...