State ex rel. Hoffman v. Withrow
Decision Date | 15 July 1896 |
Citation | 36 S.W. 896,135 Mo. 376 |
Parties | The State ex rel. Hoffman v. Withrow, Judge |
Court | Missouri Supreme Court |
Peremptory writ awarded.
Julian Laughlin and J. P. Maginn for relator.
(1) Rule 31 of the St. Louis city circuit court is in conflict with section 2168, Revised Statutes, 1889, and is void. Brooks v. Boswell, 34 Mo. 474; State ex rel. v Smith, 44 Mo. 112; Purcell v. Railroad, 50 Mo 502; Colhoun v. Crawford, 50 Mo. 458; State v Bryant, 55 Mo. 75; Ins. Co. v. Board, etc., 56 Mo. 583; Huff v. Shephard, 58 Mo. 240; State ex rel. v. Lewis, 71 Mo. 170; Maloney v. Hunt, 29 Mo.App. 379; State v. Gideon, 119 Mo. 94. (2) Rules of court when valid become rules of law and no discretion can be exercised in their application unless such discretion is authorized by the rules themselves. Thompson v. Hatch, 3 Pick. 512; Wall v. Wall, 2 Har. and G. (Md.) 79; Baker v. State, 54 N.W. 1003; Quinn v. Brooks, 22 Md. 288; Owens v. Ranstead, 22 Ill. 161; Walker v. Ducros, 18 La. Ann. 703; Hughes v. Jackson, 12 Md. 450. (3) That rules of court may be suspended, in the discretion of the court, is held in the following cases: Symons v. Bunnell, 20 P. 859; Sheldon v. Risedorph, 23 Minn. 518; U. S. v. Breitling, 20 How. 252; Co. v. Hamilton, 54 F. 468; Bank v. Post, 25 A. 1093; Dredge v. Forsyth, 2 Black, 563; Kellogg v. Forsyth, 2 Black, 571; Johnson v. Railroad, 48 Mo.App. 631.
Jos. S. Laurie and C. P. & J. D. Johnson for respondent.
OPINION
In Banc.
Mandamus.
On petition of plaintiff an alternative writ of mandamus was issued by this court to defendant Withrow as judge of the circuit court of the city of St. Louis, commanding him to show cause why he should not sign a certain bill of exceptions in an action pending in the special term of the circuit court over which he presides.
The facts as stated by defendant, and which are admitted to be substantially correct by relator, are as follows:
By way of return, respondent demurs for several reasons, among others, that it appears on the face of the writ, relator is not entitled to the relief sought.
Rule 31 of the St. Louis circuit court as set forth in the alternative writ is as follows:
The only question for consideration in this case is whether the rule of court before recited is valid. Relator contends that it is void because in conflict with section 2168, Revised Statutes, 1889.
That section provides that,
The circuit court of the city of St. Louis has the inherent power, irrespective of statutory enactment, to promulgate and enforce rules with respect to proceedings and the order of business in it, not in contravention with the constitution and statute, but any rule which operates to deprive a party of a right conferred upon him by statute, or which is in conflict with its provisions, is, to whatever extent that may be, void.
While by the statute quoted the filing of bills of exceptions, and the extension of the time in which the same may be filed are provided for under the conditions therein named, no power is conferred upon that court to impose conditions upon which such a bill may be filed, nor had the circuit court of St. Louis the inherent power to impose any such prerequisite to the signing of the bill as was done in the case in hand.
When relator prepared her bill and presented it to the respondent for his signature, it was his duty after having had a reasonable time to examine the same to sign it if true, but if untrue and for that reason he refused to sign it, he should have so certified under his hand, as required by section 2169, Revised Statutes. If he did not have time to examine the bill before the adjournment of the court for the term at which it was presented, then he should have extended the time for its filing by an order of record, in order that an opportunity might be afforded him in which to so do.
When, therefore, the court undertook by rule to require the party excepting within ten calendar days thereafter to prepare a bill of exceptions and cause the same, or a copy thereof, to be served on the adverse party, a condition precedent to the signing of such bill by the judge before whom the trial was had, it shortened the time in which the exceptor is given by the statute to present his exceptions, and imposed upon him terms more onerous than authorized by said statute.
By the law relator was only required to prepare and present her bill to the court or judge for his signature within the time prescribed by the statute, that is, during the term, while by the rule, in addition to this, she was required within ten calendar days after any ruling was made to which she desired to except to prepare her bill, and cause the same or a copy thereof to be served on the adverse party, and in case this was not done the court or judge was prohibited from signing the same.
That such a rule, if observed, would relieve the court of much labor and greatly facilitate business therein is, doubtless true, but it seems quite clear to us, that it had no power to adopt such a rule or to enforce its observance. In Works on Courts and Their Jurisdiction, page 177, it is said: "A court can not make and enforce a rule that will deprive a party of a right given him by law or granting the right upon terms more onerous than those fixed by law." See, also, People v. McClellan, 31 Cal. 101; Krutz v. Howard, 70 Ind. 174; Krutz v. Griffith, 68 Ind. 444; State ex rel. v....
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