State ex rel. Midwest Pipe & Supply Co. v. Haid

Decision Date07 July 1932
Citation52 S.W.2d 183,330 Mo. 1093
PartiesThe State of Missouri at the Relation of Midwest Pipe & Supply Company, a Corporation, and American Mutual Liability Insurance Company, a Corporation, Relators, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals
CourtMissouri Supreme Court

Peremptory writ awarded.

Wm R. Schneider and Joseph J. Cooney for relators.

N Murray Edwards for respondents.

(1) The judgment of the trial court reversing and remanding the award of the Workmen's Compensation Commission was rendered at the February Term, 1931, of court, and relators' appeal to the St. Louis Court of Appeals was not taken until the April Term, 1931, of court. Therefore, the respondents (St Louis Court of Appeals) had no jurisdiction of the cause. State v. Haid, 38 S.W.2d 57; Brocco v. May Dept. Stores, 22 S.W.2d 832. (a) The doctrine of stare decisis was not applied, by this court, to the Workmen's Compensation Commission laws and statutes but only to the Public Service laws and statutes in overruling the case of City of Macon v. Public Service Commission, 266 Mo. 484. State v. Haid, 38 S.W.2d 53. (2) The judgment of the trial court was rendered at the February Term, 1931, of court, and relators' (appellants in the Court of Appeals) motion for new trial was overruled at the April Term, 1931, of court. No exceptions were saved to the overruling of said motion for new trial and no bill of exceptions was filed and allowed in the trial court. Therefore the respondents (St. Louis Court of Appeals) had no jurisdiction to review said appeal, as a motion for a new trial does not preserve itself and is not a part of the record proper. Danforth v. Railway Co., 123 Mo. 205; Wentzville Tobacco Co. v. Walker, 123 Mo. 671; Butler Co. v. Graddy, 152 Mo. 443; Lawson v. Mills, 150 Mo. 428; Kent v. L. B. Price Merc. Co., 17 S.W.2d 985; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 41 S.W.2d 1050; Marsden v. Nipp, 30 S.W.2d 77.

Carter, Jones & Turney and George A. McNulty for Jack Rabbit Candy Company and United States Fidelity and Guaranty Company, amici curiae.

(1) Respondents had jurisdiction of relators' appeals despite the fact that relators did not perfect their appeals during the judgment term of the circuit court. Dougherty v. Rubber Mfg. Co., 29 S.W.2d 126; Brocco v. May Dept. Stores Co., 22 S.W.2d 832; Lillie v. Wholesale Grocery Co., 32 S.W.2d 1099; State ex rel. v. Trimble, 318 Mo. 173, 300 S.W. 812; State ex rel. v. Haid, 22 S.W.2d 1045; State ex rel. May Dept. Stores v. Haid, 38 S.W.2d 44. (2) Respondents had jurisdiction of relators' appeals despite the fact that relators filed no bill of exceptions. State ex rel. May Dept. Stores v. Haid, 38 S.W.2d 54; Kristanik v. Chevrolet Motor Co., 41 S.W.2d 911.

OPINION

Henwood, J.

This is an original proceeding in mandamus wherein relators seek to compel the St. Louis Court of Appeals to set aside its order dismissing the appeal in the case of Lena Bender, respondent, v. Midwest Pipe & Supply Company and American Mutual Liability Insurance Company, appellants, and to compel said court to hear said case and to render a decision therein on the merits.

Our alternative writ was issued, and respondents filed a demurrer to relator's petition, the ground of the demurrer being that the facts stated in the petition are not sufficient to authorize the issuance of a writ of mandamus.

From relators' petition we gather the following:

Lena Bender, widow of William Bender, filed with the Workmen's Compensation Commission her claim for death benefits against Midwest Pipe & Supply Company, employer of her deceased husband, and American Mutual Liability Insurance Company, insurer. The commission found against the claimant and awarded her no compensation, and on her appeal the case was certified to the Circuit Court of the City of St. Louis. On March 23, 1931, the February Term, 1931, of the circuit court, said court made findings of fact in favor of claimant and entered its judgment reversing the award of the commission and remanding the cause with direction to the commission to award claimant compensation in the sum of $ 20 per week for a period of 300 weeks. On March 27, 1931, at the February Term, 1931, of the circuit court, the employer and insurer filed a motion for a new trial. On May 20, 1931, at the April Term, 1931, of the circuit court, the motion for a new trial was overruled. On May 26, 1931, at the April Term, 1931, of the circuit court, the employer and insurer filed an affidavit for an appeal and were allowed an appeal to the St. Louis Court of Appeals. Thereafter, within the time prescribed by law, said appellants filed in the St. Louis Court of Appeals a transcript of the record, in short form, consisting of a certified copy of the judgment of the circuit court and of said court's order allowing an appeal from said judgment. The cause was docketed for hearing in the St. Louis Court of Appeals on October 23, 1931, and within the time prescribed by law said appellants filed copies of their abstract of the record and of their brief in said court and delivered a copy of each to said respondent. On September 29, 1931, said respondent moved that the appeal be dismissed, on the ground that it was not taken during the February Term, 1931, of the circuit court, at which term the judgment was rendered, but during the April Term, 1931, of the circuit court, and on October 8, 1931, said motion was sustained and the cause dismissed. On October 13, 1931, said appellants moved that the order dismissing the appeal be set aside and that the cause be heard and considered on its merits, and on October 15, 1931, said motion was overruled.

On April 7, 1930, in the case of Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126, this court held, in effect, that, when an appeal is taken from a judgment of a circuit court in any proceeding under the Workmen's Compensation Law, the appellant must file a motion for a new trial and a bill of exceptions in order to obtain a review of the whole record in the appellate court, and that otherwise the appellate court's review is limited to the record proper, that is, the pleadings and the judgment. And decisions to this effect were rendered by the St. Louis Court of Appeals on January 7, 1930, in the case of Brocco v. May Department Stores Co., 22 S.W.2d 832, and by the Kansas City Court of Appeals on December 1, 1930, in the case of Lilly v. Moberly Wholesale Grocery Co., 32 S.W.2d 1099, both of said decisions being based on the holding of this court in the case of City of Macon v. Public Service Commission, 266 Mo. 484, 181 S.W. 396, that, in appeals from judgments of circuit courts in all proceedings under the Public Service Commission Law, the filing of a motion for a new trial and a bill of exceptions are necessary procedural steps for a review of the whole record in this court. On April 7, 1931, in the case of State ex rel. v. Haid, 327 Mo. 567, 38 S.W.2d 44, we expressly overruled the decision in the City of Macon case, and also expressly overruled the decision in the Dougherty, Brocco and Lilly cases, and held that the record made in a compensation proceeding before the commission, including the evidence taken there, constitutes the record of the circuit court on appeal to that court, and that the filing of a motion for a new trial and a bill of exceptions are not necessary procedural steps for a review of such record of the circuit court on appeal from the judgment of that court, and that when the judgment of the circuit court is based on such record an appeal from such judgment must be taken during the judgment term of that court.

I. The first question presented for our determination in this proceeding is whether relators as appellants in the Bender compensation case had the right to rely on the decisions in the Dougherty, Brocco and Lilly cases in taking an appeal from the judgment of the circuit court; or, in other words, whether this court's decision in the case of State ex rel. v. Haid, on April 7, 1931, operates retrospectively as to the Bender compensation case.

It seems necessary to quote extensively from our decision in the case of State ex rel. v. Haid, as follows:

"As respects the jurisdiction and authority conferred upon the circuit court, there is no essential difference or distinction between that conferred by the Public Service Commission Act and that conferred by the Workmen's Compensation Act, for it is obvious that neither act contemplates a trial in the circuit court, and that both acts contemplate and provide for a judicial review only in the circuit court acting as an intermediate court of review. [See Secs. 3342, 5234, 5237, R. S. 1929.] . . .

"Both the Public Service Commission Law and the Workmen's Compensation Act manifest the clear and certain intention of the lawmaking department of our State government to simplify the appellate procedure with respect to those controversies whereof the initial hearing and determination is vested in a nonjudicial or administrative body or commission, by providing for a judicial review of the final orders and decisions of such nonjudicial and administrative body to be had before an intermediate appellate court, which court acts, however, only as a court of review, and which intermediate court of review, by express legislative enactment, is without power or authority to try the controversy anew or de novo. . . . We therefore conclude that the former decision of this court in City of Macon v. Public Service Commission, 266 Mo. 484, should be expressly overruled.

"The overruling of our former decision in the City of Macon case should not disturb the rights of those litigants under the Public Service Commission Law who have...

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