State ex rel. Kansas City v. Ellison
| Citation | 219 S.W. 90,280 Mo. 595 |
| Parties | THE STATE ex rel. KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and WILLIAM C. MULLINS |
| Decision Date | 13 March 1920 |
| Court | Missouri Supreme Court |
Case Dismissed.
E. L Snider and Fenton H. Hume for respondents.
(1) The respondents respectfully move the court to dismiss or quash the writ of certiorari herein, for the reason that relator has wholly failed to comply with Rule 35 of this court, in that relator has not served or filed herein printed abstracts and briefs as required by said rule. State ex rel. v Robertson, 181 S.W. 987.
E. M Harber and A. F. Smith for relator.
(1) Rules of court are adopted to assist the court in the performance of its duties; those rules are for the execution of the business of the court, not for the execution of causes of action. While a litigant may lose his remedy by his failure to comply with a rule of court, that result should not follow unless his failure interferes with the orderly conduct of the business of court; and a rule that would authorize such drastic punishment, like a penal statute should not be applied except in a case that comes clearly within its terms. (2) A certiorari proceeding to review a decision of a court of appeals presents a very simple question on a very simple record; Does the opinion of the Court of Appeals declare a rule contrary to a prior decision of this court? The consideration of that question requires little search of the record. It is found by an examination of a short application for a writ of certiorari, and an examination of the opinion of the Court of Appeals, copies of which are in respondents' hands from the inception of this proceeding, and when this question is presented in this court the printed abstract is before this court, so this court is in no wise inconvenienced. So far as the respondents are concerned, they wrote the opinion that is in controversy they have a copy of it in the files of their court; they have access to a printed copy of it. At the very filing of the application for a writ of certiorari, they were served with a copy of the application for the writ with all of the document thereto attached; and nearly two months before this cause was set for hearing, they were served with a printed brief presenting the question at issue, in which brief was a statement of facts that was in itself an abstract of the record so far as the question at issue is concerned. So they have not been inconvenienced. The reason for the rule then has no application in this case, and therefore a failure to comply with it has done no harm and should entail no heavy penalty. (3) But if it be contended that the rule must be strictly enforced, according to its letter, then by that same token it should not be enforced beyond its letter. And the relator is within the letter of the rule. In cases originating in this court the pleadings filed are the record, and the printed abstract is a convenience merely, not a necessity, either for the court or the respondents. So the filing of a printed abstract of the record is within the reason and letter of the rule in such cases, and the service of a printed copy thirty days before the hearing is not necessarily within the reason of the rule, and certainly is not within the letter of it. Rule 33 of this court regulating the procedure as to original writs provides: "On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writs of error in ordinary cases." The printed abstract of the record having been filed one day before the case is set for hearing the relator has complied with rule 12 of this court...
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