State ex rel. K.C. Stock Yards Co. v. Trimble

• Decision Date: 24 June 1933
• Docket Number: No. 31806.,31806.
• Citation: 62 S.W.2d 473
• Parties: STATE OF MISSOURI at the Relation of KANSAS CITY STOCK YARDS COMPANY, a Corporation, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND, HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals, and CHESTER T. WOODCOCK.
• Court: Missouri Supreme Court

62 S.W.2d 473

STATE OF MISSOURI at the Relation of KANSAS CITY STOCK YARDS COMPANY, a Corporation, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND, HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals, and CHESTER T. WOODCOCK.

No. 31806.

Supreme Court of Missouri, Division Two.

June 24, 1933.^*

Mandamus.

PEREMPTORY WRIT DENIED.

Borders, Borders & Warrick and Cornelius Roach, Jr., for relator.

(1) Relator intended to appeal and did perfect its appeal to the Kansas City Court of Appeals from the judgment of the Circuit Court of Jackson County, Missouri, at Kansas City, Division 4, entered on the verdict of the jury in the case of Chester T. Woodcock, Plaintiff, v. Kansas City Stock Yards Company, Defendant. (a) The application for appeal was sufficient. Sec. 1018, R.S. 1929; 3 C.J. 1087, par. 1098; State ex rel. v. McElhinney, 241 Mo. 608; Bonfils v. Food Service Co., 253 S.W. 982; Cassidy v. St. Joseph, 247 Mo. 203; Kennedy v. Bowling, 4 S.W. (2d) 441. (b) The presence or absence of an application for appeal or irregularities appearing in the application for appeal do not present a jurisdictional question. (c) A respondent, in order to take advantage of an irregularity in the application for appeal, must attack the sufficiency of the application by motion to dismiss. Cooley v. Railroad Co., 149 Mo. 487; State ex rel. v. Broaddus, 210 Mo. 1; Causey v. Wittig, 11 S.W. (2d) 14. (d) A respondent, in order to take advantage of any irregularity in an affidavit for appeal, must attack the sufficiency of the affidavit by motion to dismiss. Sec. 1028, R.S. 1929; Kennedy v. Bowling 4 S.W. (2d) 441; Cooley v. Railroad Co., 149 Mo. 487; State ex rel. v. Broaddus, 210 Mo. 1; Causey v. Wittig, 11 S.W. (2d) 14. (e) The question as to what judgment or order is appealed from is conclusively determined by the contents of the certified copy of the record entry of the judgment appealed from, required by Section 1028, Revised Statutes 1929. Sec. 1028, R.S. 1929. (2) There being a final judgment in the case of Chester T. Woodcock, Plaintiff, v. Kansas City Stock Yards Company, a Corporation, Defendant, in the Circuit Court of Jackson County, Missouri, at Kansas City, Division 4, from which appeal lay and the certified copy of the record entry of the judgment entered on the verdict in that cause having been filed with the Kansas City Court of Appeals and all steps having been taken to perfect the appeal from the judgment on the verdict and no question having been raised as to the sufficiency of the application or affidavit for appeal or order allowing appeal and no question having been raised as to what judgment was appealed from and the cause having been submitted on its merits, the ends of justice and equity dictate a decision on the merits in that cause. Cooley v. Railroad Co., 149 Mo. 487; State ex rel. v. Broaddus, 210 Mo. 1; Causey v. Wittig, 11 S.W. (2d) 14. (3) The Rules of the Kansas City Court of Appeals required the respondent to make timely objection if the abstract of the record failed to show that "The Appeal Was Duly Taken." Amendment to Rule 15 of the Kansas City Court of Appeals. (4) Mandamus is the proper remedy to compel an inferior court to exercise jurisdiction of a case properly before it. State ex rel. Kansas City L. & P. Co. v. Trimble, 258 S.W. 697. (5) The learned judges of the Kansas City Court of Appeals in their opinion rendered in the cause of Chester T. Woodcock, Respondent, v. Kansas City Stock Yards Company, Appellant, cited two cases as authority for the position adopted by that court in that cause, both of which are clearly distinguishable and, in fact, wholly inapplicable. Bonfils v. Food Service Co., 299 Mo. 500; Arcadia Timber Co. v. Evans, 304 Mo. 674.

Grover Childers for respondents.

(1) Relator's appeal "from the judgment and orders of the court in overruling defendant's motion for new trial and in arrest" was not an appeal from a final judgment, or from an appealable order enumerated in Section 1018, R.S. 1929; and relator's affidavit for appeal "that appellant is aggrieved by the ruling and decision of this court overruling defendant's motion for a new trial and in arrest of judgment" was not a compliance with Section 1020, R.S. 1929, governing affidavits for appeals. Secs. 1018, 1020, R.S. 1929; Walser v. Leach, 190 S.W. 932; Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982; Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810; Elliott v. Ward. 251 S.W. 71; Pfotenhauer v. Ridgeway, 307 Mo. 529, 271 S.W. 50; Cavanaugh v. Dyer, 215 S.W. 481. (a) The authorities cited by relator do not sustain the points urged. Sec. 1018, R.S. 1929; State ex rel. v. McElhinney, 241 Mo. 608, 145 S.W. 1139; Bonfils v. Food Service Co., 299 Mo. 500, 253 S.W. 982; Cassidy v. St. Joseph, 247 Mo. 203, 152 S.W. 306; Kennedy v. Bowling, 4 S.W. (2d) 441. (b) The absence of an application for appeal may, and jurisdictional defects, do present, jurisdictional questions where such irregularities constitute a total failure to comply with the statutory requirements regulating appeals. Authorities supra 1. (c and d) A respondent may raise the question of sufficiency of the application and affidavit for appeal at any time where there is such failure of compliance with statutory requirements as confers no jurisdiction on the appellate court. Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 983; Elliott v. Ward, 251 S.W. 71; Walser v. Leach, 190 S.W. 932. (c and d 2) The authorities cited by relator do not relate to situations involving total failure to comply with statutory requirements, wholly failing to confer jurisdiction on the appellate court. Cooley v. Railroad Co., 149 Mo. 478, 51 S.W. 101; State ex rel. v. Broaddus, 210 Mo. 1, 108 S.W. 544; Causey v. Wittig, 11 S.W. (2d) 14; Kennedy v. Bowling, 4 S.W. (2d) 441; Sec. 1028, R.S. 1929. (e) The question as to what judgment or order is appealed from is determined from the application and affidavit for appeal. Sec. 1028, R.S. 1929; Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982. (2) Appeals are purely statutory. No provision is made for appeals from orders overruling a motion for new trial or in arrest of judgment. The matter is jurisdictional in this case. Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982; Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810. (a) Authorities cited by relator are not in point on the question. Cooley v. Ry. Co., 149 Mo. 478, 51 S.W. 101; State ex rel. v. Broaddus, 210 Mo. 1, 108 S.W. 544; Causey v. Wittig, 11 S.W. (2d) 14. (3) The authorities cited by the judges of the Kansas City Court of Appeals, viz: Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982, and Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810, are directly in point on the question involved and are ruling decisions of this court on the question and were properly cited and followed by the Kansas City Court of Appeals. Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982; Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810.

FITZSIMMONS, C.

The question for decision is whether we should issue our peremptory writ of mandamus against respondents, the judges of the Kansas City Court of Appeals. Our alternative writ commanded them to set aside an order of their court dismissing an appeal and to reinstate the cause for decision on its merits or that they show cause why they should not do so. Respondents having filed their return to the alternative writ, relator filed its motion for judgment upon the pleadings.

The issue is whether the Kansas City Court of Appeals had jurisdiction of a certain cause in which Chester T. Woodcock, one of the respondents here, was plaintiff and respondent there, and Kansas City Stock Yards Company, relator here, was defendant and appellant there. Judgment having been rendered in the Jackson County Circuit Court in the sum of $300 against relator, Kansas City Stock Yards Company, there was filed on behalf of that company in the trial court a certain application and affidavit for appeal, the jurisdictional validity and sufficiency of which is the precise question before us. The application and affidavit for appeal are as follows:

"Application and Affidavit For Appeal.

"Comes now the defendant in the above entitled cause, and moves the court to grant it an appeal from the judgment and orders of the court in overruling defendant's motion for a new trial and in arrest, to the Kansas City Court of Appeals at Kansas City, Missouri.

                             "(Signature of Attorneys)
                                 "Attorneys for Defendant
                "State of Missouri, County of Jackson, ss
                

"(Name of Attorney) of lawful age, being duly sworn, on his oath states that he is one of the attorneys and agents for the defendant in the above entitled cause, and is duly authorized to and does make this affidavit for and on behalf of said defendant. Affiant further states that the appeal taken on behalf of said defendant herein is not taken for vexation or delay, but because the affiant believes in truth and in fact that appellant is aggrieved by the ruling and decision of this court overruling defendant's motion for a new trial and motion in arrest of judgment.

"(Signature of Affiant and jurat of Notary.)"

It is conceded that mandamus is the proper remedy to compel an inferior court to exercise jurisdiction of a cause properly before it. [State ex rel. Kansas City Light and Power Company v. Trimble et al., 303 Mo. 284, 258 S.W. 696.]

[1] I. It has been ruled often that the right of appeal is purely statutory. Section 1018 (2 Mo. Stat. Ann. 1929, p. 1286), specifies the judgments and orders from which an appeal may be taken. The parts of that statute, pertinent to this case, are: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from...