State ex rel. Massman Const. Co. v. Shain
| Decision Date | 07 July 1939 |
| Docket Number | 36392,36396 |
| Citation | 138 S.W.2d 649,344 Mo. 1003 |
| Parties | State of Missouri at the relation of Massman Construction Company, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals. State of Missouri at the relation of Mitchel J. Henderson, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Reported at 344 Mo. 1003 at 1016.
Original Opinion of July 7, 1939, Reported at 344 Mo. 1003.
Martin J. O'Donnell, of Kansas City, for relators.
W.M Raines, of Kansas City, for respondents and Thos. E. Deacy.
Bradley C. Hyde and Dalton, CC., concur.
BRADLEY
On Motion to Tax Costs [*]
The opinion in the above consolidated causes (in certiorari) was handed down at the May Term, 1939, and is reported in 344 Mo 1003, 130 S.W.2d 491. The purpose was to quash the record and opinion of the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77. The opinion and judgment in cause No. 36,392 quashed, in part, the opinion and record in the Nelson case (120 S.W.2d 77) and the opinion and judgment in cause No. 36,396 quashed the writ issued in that case. The Massman Construction Company duly filed a motion to tax costs in both of the certiorari causes, Nos. 36,392 and 36,396.
By the motion in No. 36,392, the Massman Construction Company asks that the docket fee and the costs of printing the abstract be taxed against Thomas E. Deacy who was the beneficiary of the judgment and opinion of the Court of Appeals. By the motion in cause No. 36,396, the Massman Construction Company asks that the cost of printing what is called a counter-abstract be taxed against Mitchel J. Henderson, who was the relator in that cause.
We will first consider the motion in case No. 36,392. Thomas E. Deacy, by his counsel, has filed suggestions in opposition to the motion to tax costs in No. 36,392. It is suggested that the certiorari proceeding, instituted by the Massman Construction Company, was an original proceeding, and was against the judges of the Kansas City Court of Appeals, and that he, Deacy, was not a party to such proceeding, and that in the situation this court has no power to tax costs against him. No authority is cited in support of the suggestions. Reference, however, is made to Section 1028, Revised Statutes 1929 (Mo. Stat. Ann., p. 1310). This section, among other things, provides that "if the abstract filed by the appellant or plaintiff in error be sufficient and correct, a reasonable charge therefor shall be taxed against the respondent or defendant or defendant in error, if he be the losing party." It will be observed that Section 1028 is no authority for taxing costs in a certiorari proceeding, since this section has reference only to appeals and writs of error. Certiorari, in the Supreme Court, to quash an opinion of a Court of Appeals, while usually considered as an original proceeding, is not entirely original as distinguished from the term appellate. "Certiorari is appellate in the sense that it involves a limited review of the proceedings of an inferior jurisdiction; it is original in the sense that the subject matter of the suit or proceeding which it brings before the court is not reinvestigated, tried and determined on the merits generally, as on appeal at law or writ of error." [11 C. J. 90.] In certiorari to quash an opinion of a Court of Appeals the parties are not the same as the parties to the cause, or action determined by the Court of Appeals. Such proceeding (certiorari) is a new, distinct, and separate action from that decided by the Court of Appeals, and is not a continuation of the original suit or action decided by the Court of Appeals. [State ex rel. Jacobs v. Trimble et al., 310 Mo. 150, l. c. 155, 274 S.W. 1075.]
Section 3, Article VI of the Constitution provides: Section 8 of the Amendment of 1884 provides: "The Supreme Court shall have superintending control over the courts of appeals by mandamus, prohibition and certiorari." Under these provisions and in a proper case, the Supreme Court has the power to quash the record and opinion of a Court of Appeals. [State ex rel. Curtis v. Broaddus et al., 238 Mo. 189, 142 S.W. 340.]
Sec. 1249, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1249, p. 1473), provides that "in all cases where either party shall sue out a certiorari upon any judgment where the same shall be allowed by law, the successful party in the superior court shall recover costs in both courts." What is now Section 1249 was enacted in 1835, Revised Statutes 1835, page 129, section 15. There were no court or Courts of Appeals, as we now have, when Section 1249 was first enacted. Then the only appellate court, superior to the circuit court, was the Supreme Court, but what is now Section 3, Article VI of the Constitution, set out, supra, was then a part of the Constitution. Section 1249, Revised Statutes 1929, is a part of Article XX, Chapter 5, Revised Statutes 1929, relating to costs, and for the most part, the article pertains to costs in the circuit court, but there is nothing in the article that would suggest that it is restricted to costs accruing in the circuit court. On the contrary, Section 1253 of the article provides for the recovery of costs in appeals and writs of error. Section 1249, providing for costs in certiorari is general in its scope and therefore not restricted to any particular certiorari proceeding.
In Hickman v. Hunter, Dist. Judge, 159 Iowa 201, 140 N.W 425, it appears that Hickman brought suit against William Bunch and wife. In that case the district court rendered a judgment against Hickman for $ 350 on a counterclaim which was filed in the cause after Hickman had dismissed his case. Hickman commenced certiorari in the Supreme Court and against the district judge who rendered the judgment to annual the judgment on the counterclaim in the district court. The judgment was annulled, and on the question of costs the court said: ...
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