State ex rel. McPike v. Hughes
| Decision Date | 10 February 1947 |
| Docket Number | 40006 |
| Citation | 199 S.W.2d 405,355 Mo. 1022 |
| Parties | State of Missouri ex rel. May McPike, Relatrix, v. William C. Hughes, Edward J. McCullen and Lyon Anderson, Judges of the St. Louis Court of Appeals |
| Court | Missouri Supreme Court |
PRELIMINARY RULE MADE PERMANENT.
Edwin D. Franey and Hay & Flanagan for relatrix.
(1) Section 12 of Article VI of the Constitution of 1875, which established the St. Louis Court of Appeals, did not vest power in said court to issue writs of error. The words "other original remedial writs" in this section refer to writs of the same class or genus as the four original writs specifically named, and the court in issuing writs of error exercises its appellate rather than its original jurisdiction. Vail v. Dinning, 44 Mo. 210; Rule 32 of the Supreme Court, in effect before January 1 1945; Rule 2 of the St. Louis Court of Appeals, in effect before January 1, 1945; Lane v. McCabe and Charless, 5 Mo. 285; City of Moberly v. Lotter, 181 S.W. 991 266 Mo. 457; Lewis v. Kansas City, 122 S.W.2d 852 233 Mo.App. 341; State v. Hardy, 98 S.W.2d 593, 339 Mo. 897. (2) Section 20 of Article VI of the Constitution of 1875 did not vest power in the St. Louis Court of Appeals to issue writs of error, the purpose of this section being merely to fix the time when appeals and writs of error should be triable. (3) Section 27 of Article VI of the Constitution of 1875 did not vest power in the St. Louis Court of Appeals to issue writs of error, the purpose of this section being merely to define the exclusive geographical jurisdiction of said court. The fact that this section states that the St. Louis Court of Appeals shall have exclusive jurisdiction of all appeals from and writs of error to certain named counties does not make a writ of error a constitutional writ. If it did, then an appeal is also a constitutional right, but our courts have always held that the right of appeal is statutory and may be given or taken away at the pleasure of the legislature. Tevis v. Foley, 30 S.W.2d 68, 325 Mo. 1050; DeJarnett v. Tickameyer, 40 S.W.2d 686, 328 Mo. 153; Monahan v. Monahan's Estate, 89 S.W.2d 153, 232 Mo.App. 91; Godefroy Mfg. Co. v. Lady Lennox Co., 110 S.W.2d 803. (4) Section 1 of the Amendment of 1884 to the Constitution of 1875 did not vest power in the St. Louis Court of Appeals to issue writs of error, the purpose of this section being merely to extend the geographical jurisdiction of the court. (5) Section 5 of the Amendment of 1884 to the Constitution of 1875 is, by its terms, applicable to the Supreme Court only and is not applicable to the St. Louis Court of Appeals. A writ of error was not a constitutional writ under this section even as to the Supreme Court because the purpose of this section was merely to provide for direct appeals to the Supreme Court in cases within its jurisdiction. Rourke v. Holmes Street Ry. Co., 257 Mo. 555, 166 S.W. 272; Steffen v. St. Louis, 135 Mo. 44, 36 S.W. 31. (6) Since a writ of error was not a constitutional writ under the Constitution of 1875 or the Amendment of 1884, the legislature had power to abolish writs of error by Section 125 of the Civil Code of Missouri. 2 Am. Jur., p. 848, sec. 6; 4 C.J.S., p. 70, sec. 10 b (1). (7) A writ of error is not a constitutional writ under Section 4 of Article V of the Constitution of 1945 which vests power in the appellate and circuit courts to issue and determine original remedial writs. A writ of error is not an original remedial writ within the meaning of this section. See authorities cited under Point (1), supra. (8) Sections 1200 or 1223, R.S. 1939, completely covered the procedure as to writs of error and therefore abrogated the common law on the subject. First Natl. Bank of Kansas City v. White, 220 Mo. 717, 120 S.W. 36; State v. Boogher, 71 Mo. 631; State v. Dalton, 134 Mo.App. 517. (9) Since the common law with respect to writs of error was superseded by Sections 1200 to 1223, R.S. 1939, the express repeal of these sections by Section 1 of the Civil Code (Laws 1943, page 356) did not have the effect of reviving the common law on the subject as the intention of the legislature that writs of error should no longer exist in civil procedure was manifested by Section 125 of the Civil Code. State v. Slaughter, 70 Mo. 484; Hindman v. City of Springfield, 80 Mo.App. 579. (10) Since the statutory provisions relative to writs of error were repealed and the common law with respect thereto was not thereby revived, no power would remain to issue writs of error unless such right was given by the Constitution of 1875 or the Amendment of 1884, and when the Constitution of 1875 was superseded by the Constitution of 1945 any such power to issue writs of error ceased. (11) Rule 3.02 (b) of this court, providing that writs of error shall not be issued in civil procedure, is in accord with the Civil Code and the Constitution. This court had the power to promulgate said rule. Sec. 10, Civil Code of Missouri; Laws 1943, p. 359; Sec. 5, Art. V, Constitution of 1945. (12) No substantive rights were changed by the abolition of writs of error as such abolition merely affected the manner of appellate review, a matter of procedure only. Hopkins v. Kurn, 171 S.W.2d 625, 351 Mo. 41.
George F. Heege for respondents.
(1) The writ of prohibition is a discretionary writ and this court is not compelled under all circumstances to issue it. In other words, it is a writ of discretion. (2) Section 125 of the new Civil Code and Rule 3.02 (b) are in violation of Section 12, Article 6, and Section 27, Article 6 of the Constitution of 1875. State ex rel. v. Lerkner, 181 S.W.2d l.c. 1002; State ex rel. v. Trimble, 10 S.W.2d l.c. 520; State ex rel. Public Serv. Comm., 92 S.W.2d l.c. 882; State ex rel. v. Shain, 106 S.W.2d l.c. 899; Blunt v. Sheppard, 1 Mo. 132; Graves v. Ravenscourt, 1 Mo. 133. (3) When the Legislature passed the new Civil Code, to-wit: in 1943, and when it went into effect, January 1, 1945, the new Constitution of 1945 had not yet become effective. Schedules of Constitution of 1945. (4) The writ of error is a remedial writ and authority of the St. Louis Court of Appeals to issue it is granted in Section 12, Article 6, Constitution of 1875; Sec. 12, Art. 6, Constitution of 1875; 3 C.J., p. 303, sec. 10; Fugitt v. State, 37 So. 554; State ex rel. v. Rose, 241 S.W. l.c. 198. (5) The writ of error is a writ of right and of ancient common law origin and the repeal of the statute relating to proceedings effecting it did not have the effect of destroying the writ. Anderson v. Steyer, 50 N.E. 665; Minter v. People, 29 N.E., l.c. 45; Stafford v. Burroughs, 186 S.W.2d 588; Baier v. Shermerhorn, 71 N.W. 600; Harrison v. Tardu, 27 Ark. 59; Cunningham v. Kansas City, etc., 38 S.W.2d 735. (6) The right to a writ of error is a substantive right and this court had no power to destroy substantive rights under its rule-making power. Art. 5, Sec. 5, Constitution of 1945; 4 C.J.S., p. 1034, sec. 577. (7) This court never intended to abolish the writ of error by Rule 3.02 (b) unless Section 125 of the new Civil Code was constitutional and valid. See Rule 3.02 (b).
DOUGLAS
May McPike, the relatrix, recovered a judgment for personal injuries against the St. Louis County Bank in the Circuit Court of St. Louis County for $ 2,500 on May 23, 1945. The bank's appeal was not timely perfected, and on May 15, 1946 the bank obtained the issuance of a writ of error by the St. Louis Court of Appeals directed to the trial court.
The relatrix then brought in this court this original proceeding in prohibition against the Judges of the St. Louis Court of Appeals to test the right of that court to continue to issue writs of error in view of the provision of the new Civil Code abolishing them in civil cases. The new Civil Code became effective on January 1, 1945. Laws 1943, pp. 353-397, Mo. R.S.A. sec. 847.1 -- .145. Section 125 provides:
This court has considered the authority of the legislature to prescribe procedure in connection with original remedial writs. Discussing this in connection with the right of this court to issue an original writ of quo warranto, this court said: "It is beyond the power of the legislature to interfere with this jurisdiction, 'and it will not be intended that a legislative enactment was designed to take such jurisdiction away, although such enactment should confer another and distinct remedy upon some inferior court or board.'" State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941. And see State ex rel. Walker v. Equitable Loan and Ins. Co., 142 Mo. 325, 41 S.W. 916; State ex inf. v. Vallins, 140 Mo. 523, 41 S.W. 887; Ex parte Hagan, 295 Mo. 435, 245 S.W. 336.
However, within constitutional limits the legislature, as a general rule, has power reasonably to regulate and control the forms of procedure for the administration of justice. Thus it may ordinarily regulate the procedure by which jurisdiction conferred by the constitution may be exercised; it may prescribe practice and procedure so long as it does not defeat or materially impair the exercise of such jurisdiction. 16 C.J.S., Constitutional Law, sec. 128; 11 Am. Jur., Constitutional Law, sec. 206.
In abolishing review by writ of error and confining it to appeal only, the legislature was following the trend exhibited in other...
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