State ex rel. Gilman v. Robertson

• Court: Missouri Supreme Court
• Writing for the Court: WOODSON, C. J.
• Citation: State ex rel. Gilman v. Robertson, 264 Mo. 661, 175 S. W. 610 (Mo. 1915)
• Decision Date: 02 April 1915
• Parties: THE STATE ex rel. C. G. GILMAN et al. v. W. R. ROBERTSON et al., Judges of Springfield Court of Appeals

175 S.W. 610

264 Mo. 661

THE STATE ex rel. C. G. GILMAN et al. v. W. R. ROBERTSON et al., Judges of Springfield Court of Appeals

Supreme Court of Missouri

April 2, 1915

Writ quashed.

M. R Lively for relators.

(1) Certiorari is proper procedure. State v. Smith, 176 Mo. 90; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Guinnotte, 156 Mo. 513; State ex rel. v Broaddus, 238 Mo. 189; Curtis v. Sexton, 252 Mo. 221. The petition is sufficient in all of its allegations. Certiorari is proper procedure and writ will be granted where exigencies of the case are such that a total or partial failure of justice may result. State ex rel. v Guinnotte, 156 Mo. 513. Certiorari is properly granted in all cases where an inferior tribunal is alleged to have exceeded its proper jurisdiction, or is otherwise acting illegally, where there is no plain, speedy and adequate remedy. State ex rel. v. Guinnotte, 156 Mo. 513; Witherall v. Shupe, 109 Pa. St. 391; Bob v State, 2 Yeager, 176. The petition contains every allegation necessary to authorize the relief prayed for; and the adjudication by this court of all matters complained of. Railroad v. Smith, 154 Mo. 308. Writ of error will not lie from affirmance of judgment of circuit court for failure to prosecute appeal; the judgment is final. Brummitt v. Phillips, 79 Mo.App. 116. (2) Motion to continue was timely; the judge's certificate sufficient. It was mandatory on the court to continue the cause. The court had jurisdiction for that purpose; continuance was denied. The proceeding was illegal; in excess of jurisdiction, and an unlawful exercise of jurisdiction; and in conflict with an express statute of this State, to-wit, section 2029, Laws 1911, and in conflict with decisions of this court in Curtis v. Sexton, 252 Mo. 221; State ex rel. v. Broaddus, 238 Mo. 189. Section 2029, Laws 1911, provides, that "if for any reason the bill of exceptions cannot be allowed and filed within the time above provided, then the judge before whom said cause was tried shall certify in writing such fact to the appellate court in which the appeal is pending, and such appellate court shall re-set or continue such case for a sufficient time in which to enable said bill of exceptions to be allowed and filed," and further "hereafter no case, now or hereafter pending in any appellate court, shall be affirmed for failure to file bill of exceptions within the time allowed by the trial court, but such case may be affirmed for failure to file bill of exceptions within the time in this section provided if error do not appear in the record of the case." The case at issue is clearly within this section of the statute, and the action of the court was in violation of that statute. (3) Respondent's motion to affirm judgment of the circuit court, filed in the Springfield Court of appeals, does not state facts sufficient to authorize an affirmance of the judgment under Sec. 2029, Laws 1911; and the order affirming the judgment on the motion filed is in conflict with said statute, and in conflict with Curtis v. Sexton, 252 Mo. 221. Respondent's motion to affirm does not state facts sufficient to authorize the affirmance of the judgment under Sec. 2047, R. S. 1909, for the reason the petition and the records show that respondent in the Springfield Court of Appeals did not produce in court the certificate of the clerk of the court in which the appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party in whose favor the appeal was granted, and the time when the appeal was granted, as a basis for such motion; and said motion did not allege that the clerk had notified appellants or their attorney of record of the completion of the transcript in time to have enabled them to have the same filed in the appellate court at an earlier date, and the respondents, by making an order affirming said judgment on said motion, proceeded illegally, in excess of jurisdiction, and an unlawful exercise of jurisdiction, and in violation of said section 2047; and in conflict with the decisions of this court in Estey v. Post, 76 Mo. 412; Caldwell v. Hawkins, 46 Mo. 263; Land & Inv. Co. v. Martin, 125 Mo. 117; and said action was in violation of Sec. 2029, Laws 1911. (4) The proceedings of the respondents in affirming said judgment is in violation of Sec. 2047, R. S. 1909, for the reason the motion does not allege that the clerk of the circuit court notified appellants, or their attorney of record of the completion of the transcript at any time, which must be alleged and affirmatively shown by the motion. Said section provides: "And the court shall affirm the judgment unless good cause to the contrary be shown; and the failure of the clerk to notify the appellants, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion." The statute is mandatory on the clerk to notify appellants, or their attorney of record, of the completion of the transcript; and mandatory on the court to overrule the motion to affirm for failure to prosecute with diligence as alleged in this motion, unless the motion affirmatively shows notice by the clerk; and the clerk has not discharged his official duty until notice is served; and the statute does not leave that question to the discretion of the court; and said proceeding was in conflict with Sec. 2047, R. S. 1909, for that reason; and in conflict with Dare v. Smith, 59 Mo.App. 52; and Land & Inv. Co. v. Martin, 125 Mo. 117. (5) Sec. 2053, R. S. 1909, is mandatory on the clerk "to without delay make out and send to the clerk of the appellate court a short form of transcript." He cannot wait for appellants' order. Appellants can only order a complete transcript of the record. This statute becomes operative and in effect as soon as an appeal is granted. The failure of the clerk to discharge his statutory duty will not defeat an appeal; and appellants will not be in default or guilty of negligence in prosecuting their appeal by reason of the clerk's failure to discharge his statutory duty, as in this case. The petition alleges, and the record shows, the appellants were diligent in having the transcript filed promptly when made out by the clerk. It was made September 21, 1914; filed September 22, 1914, and the same was in time and constituted diligence as a matter of law. The petition alleges, and the record shows, appellants made an order on the clerk June 3, 1914, to make out a short form of transcript in said cause. But the statute demanded that without order. The order could not effect the clerk's duty under the statute, and would not cause the clerk to act and discharge his statutory duty under said section. Section 2047, as amended in 1891, by adding the clause, "and the failure of the clerk to notify the appellant, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion" makes it the official duty of the clerk to notify appellants, or their attorney of record, when the transcript is made out and sent to the appellate court. The motion does not allege such notice. The petition alleges, and the record shows, the clerk did not notify appellants, or their attorney, and discharge his official and statutory duty. The clerk's duty would then have been discharged, but not until then. Sec. 2047, R. S. 1909; Dare v. Smith, 59 Mo.App. 52; Land & Investment Co. v. Martin, 125 Mo. 117. (6) Sec. 2048, R. S. 1909 provides "the appellant shall cause to be filed in the office of the appellate court in cases of appeals, fifteen days before the first day of the term of such court, a perfect transcript, or in lieu thereof, a certified copy of the record entries, etc., with order granting appeal." Relators could act under this statute and cause a transcript to be filed only after the clerk had made out same. But if the clerk failed to discharge his duty, as provided in Sec. 2053, R. S. 1909, and failed to make out such transcript, short form or complete, appellant could not cause it to be filed in the office of the appellate court; and the appellants or their attorney of record could not know that such transcript, short form or complete, had been made out until notified by the clerk of such fact, as required by Sec. 2047, R. S. 1909.

R. A. Mooneyham and Frank L. Forlow for respondents; W. M. Williams, Kendall B. Randolph, E. P. Garnett, Atwood & Hill and Park & Brown of counsel.

(1) Certiorari is not proper under the facts in this case and this court is without jurisdiction. Britton v Steber, 62 Mo. 370; In re Garesche, 85 Mo. 469; State ex rel. v. Phillips, 96 Mo. 570; State ex rel. v. Court of Appeals, 99 Mo. 216; State ex rel. v. Court of Appeals, 101 Mo. 174; State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Rombauer, 125 Mo. 632; State ex rel. v. Smith, 129 Mo. 585; State ex rel. v. Rombauer, 140 Mo. 121; Smith v. Railroad, 143 Mo. 33; Schaffer v. Railroad, 144 Mo. 170; Hess v. Gang, 145 Mo. 54; Railroad v. Smith, 154 Mo. 300; Bradley v. Ins. Co., 163 Mo. 553; State ex rel. v. Smith, 173 Mo. 399; State ex rel. v. Smith, 176 Mo. 90; Wilden v. McAllister, 178 Mo. 732; Clark v. Railroad, 179 Mo. 66; Manning v. Smith, 188 Mo. 167; Sublett v. Railroad, 198 Mo. 190; State ex rel. v. Broaddus, 207 Mo. 107; ...