State ex rel. Pedigo v. Robertson

• Decision Date: 22 December 1915
• Docket Number: 18958
• Parties: STATE EX REL. PEDIGO v. ROBERTSON ET AL., JUDGES OF SPRINGFIELD COURT OF APPEALS.
• Court: Missouri Supreme Court

181 S.W. 987

STATE EX REL. PEDIGO v. ROBERTSON ET AL., JUDGES OF SPRINGFIELD COURT OF APPEALS.

No. 18958

Supreme Court of Missouri

December 22, 1915

In Banc. Application by the State of Missouri, on the relation of Hobert Pedigo, for a writ of certiorari against William R Robertson and others, Judges of Springfield Court of Appeals to quash the judgment of that court found in 176 S. W. 556. Writ dismissed.

This is an original proceeding by certiorari, whereby relator seeks to quash the judgment of the Springfield Court of Appeals in a certain cause theretofore pending in said court wherein the state of Missouri was plaintiff and relator herein was defendant, for that the opinion of said Court of Appeals fails, as it is alleged, to follow the last previous rulings of this court upon certain points therein in issue. Our preliminary writ herein was granted on the 14th day of June, 1915, and the case set for hearing in banc at the October term. In response to our preliminary writ respondents, as judges of said Springfield Court of Appeals, made return wherein they set forth that the printed abstract of the record theretofore filed in said Springfield Court of Appeals, and by said respondents tendered to us, contained a complete transcript of all the proceedings in the trial court in the said case of State v. Pedigo, and that a copy of respondents’ opinion affirming the last-mentioned case in said Court of Appeals, together with the record entries made therein by respondents, had been theretofore certified and filed in this court at the time of the filing of the application for the issuance of the preliminary writ as a part of such application. They do not send up to us the bill of exceptions containing the evidence in the case of State v. Pedigo, but in lieu thereof an abstract made and filed in the Court of Appeals by counsel for Pedigo. The case is here, therefore, upon the typewritten application of relator, containing the record entries in the case of State v. Pedigo, the opinion filed in the latter case in the Court of Appeals, and the printed abstract of the record filed in said case of State v. Pedigo in the Court of Appeals. Upon the final hearing and argument here nothing has been filed by relator except his brief, which consists of a bare printed argument only. In the view which we are compelled to take of the case these facts will suffice to make clear all points upon which we pass.

I. V. McPherson, of Aurora, and Charles L. Henson, of Mt. Vernon, for relator.

John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for respondents.

OPINION

FARIS, J. (after stating the facts as above).

I. Upon the threshold we meet a question which, though the respondents do not moot it, we raise ourselves, as we have the right to do, because it vitally affects the facility and therefore the rapidity with which we transact the business and duties entrusted to us by the state. If we were sitting here waiting for something to do, if there were not hundreds of litigants wearily waiting to be reached by us, we would be warranted in shutting our eyes, or one of them at least, and going by on the other side as the Levite and another did upon a well-known occasion. This question is as to the practice here in cases growing out of original writs issued by us. We have a rule which, among other things not here pertinent, providing for the practice in this court in cases wherein the proceedings are begun here by the issuance by us of an original writ, reads thus:

"On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writ of error in other civil cases." Rule 35 (169 S.W. xii), adopted April 2, 1914.

Regarding the right of courts of record to make rules and to enforce them, and touching the duty of courts of record in the last behalf, we said in the case of Rigdon v. Ferguson, 172 Mo. loc. cit. 52, 72 S.W. 504:

"That courts of record have authority to make rules governing the practice before them, when in harmony with the law, is beyond question. Brooks v. Boswell, 34 Mo. 474. The rule invoked in this case was within the power of the court to make and was a reasonable regulation. When a rule of practice that is reasonable and proper is thus made and is known to the bar, it is the duty of the court to enforce it. If the court should disregard its own rule, it would thereby suffer the rule to become misleading to those who follow it, and work injustice."

Upon an analogous point we have held repeatedly that we will not go to the transcript for the evidence in the case, where our rules require such evidence or a sufficient abstract thereof to be printed. Jenkins v. Shannon County, 226 Mo. 187, 125 S.W. 1100; Mackley v. Smelting, etc., Co., 235 Mo. 488, 139 S.W. 140; Kolokas v. Railroad, 223 Mo. loc. cit. 462, 122 S.W. 1082. In the case last above, at the page cited, it was said:

"The reports are full of interpretation and application of our rules of practice, and they should either be abrogated altogether or obeyed as interpreted. Our decisions cannot be ignored, and prosperity result. So, as said through our Brother Graves, in Harding v. Bedoll, 202 Mo. loc. cit. 629 : ‘These rules apply to all persons, all cases, and all representatives of clients alike, and must be construed in one case just as they have been or will be in another, irrespective of the case, the parties, or their counsel.’ "

Subject to exceptions, none of which are here to the fore, the law as to the binding force and obligation upon the court of a rule of practice which such court adopts, in Cyc. is stated thus:

"There are numerous cases which declare that rules of court should be adhered to both by parties litigant and the court, in all cases which fall within them so long as they remain in force, and that the court has no power in a particular case, where no discretion is reserved, to suspend or modify any rule which it has made." 11 Cyc. 743.

In the light of all this we may safely conclude that we have the authority to enforce our own rules, whether the party who is the adversary of those who violate them asks us to do so or not, and that it is our duty to enforce them, to the end that orderly procedure may be had, and the business of the court, which is the intimate business of waiting litigants, may be expedited. In the case before us our rule is violated in this: That no printed abstract has been filed in the case. The original typewritten application and a so-called brief, containing but a bare argument of the points of law ruled on, and the typewritten return of respondents and the exhibits attached, make up the whole roster. Not a word of the record is printed for us, although our rule requires that there be filed "printed abstracts * * * as is required in appeals and writs of error in other civil cases." This is plainly a reference rule, and refers us to rule 13, which requires sufficient of the record to be printed in a civil case "as is necessary to a full and complete understanding of all the questions presented to this court for decision." Thus the question arises: What is the record in a proceeding by certiorari to quash a judgment of a Court of Appeals, for that such court has failed to follow our last ruling on a point of law?

II. We have no statute in this state governing the practice and proceedings in matters brought up by the writ of certiorari (except the proceedings in forcible entry and detainer [section 7695 et seq., R. S. 1909], which are in no manner pertinent to the point under discussion). So we are compelled to look to the common law for the practice and procedure as to this writ. There can be no question, which is for a minute debatable, that, absent a statute prescribing procedure, or a Constitution limiting it, the rule is as stated by 5 R. C. L. 264, viz., that:

"The writ of certiorari, as a general rule, brings up for review only the record proper of the tribunal to which it is addressed, and not the evidence. But if it becomes necessary for the court of review to be put in possession of the facts upon which the court below acted, and which are not technically of record, it is competent to require the lower court to certify such facts in its return to the writ, and this statement of facts will then be a part of the record."

The first clause of the above rule has been time and again approved by this court. State ex rel. v. St. Louis, 207 Mo. loc. cit. 366, 105 S.W. 748, 123 Am. St. Rep. 376; State ex rel. v. Broaddus, 245 Mo. 123, 149 S.W. 473, Ann. Cas. 1914A, 823. In the case of State ex rel. v. St. Louis, 207 Mo. 354, 105 S.W. 748, 123 Am. St. Rep. 376, this court speaking through Valliant, J., said (207 Mo. at page 366, 105 S.W. at page 751, 123 Am. St. Rep. 376):

"A writ of certiorari brings up only the record proper of the tribunal to which it is addressed; it does not bring up the evidence (Sholar v. Smyth, 3 Mo. 416; Hicks v. Merry, 4 Mo. 355; Railroad v. State Board, 64 Mo. 294; State ex rel. Teasdale v. Smith, 101 Mo. 174 ; Ward v. Board of Equalization, 135 Mo. 309 ; State ex rel. v. Baker, 170 Mo. 383 ); therefore the court does not know whether the evidence justified the conclusion of the board or not, but the record does show that the board was dealing with a subject within its peculiar province and that its proceedings were regular; therefore with its decision we must be satisfied."

In the case of State ex rel. v. Broaddus, supra, which was a case in banc (wherein was being discussed the identical writ used for the identical purpose as in the instant case to wit, to bring up for quashal, if facts and law to that end be found, a judgment in the Kansas City Court of Appeals, for that, as it was alleged, such court had failed to follow our last...