State ex rel. Porter v. Falkenhainer

• Citation: 12 S.W.2d 481,321 Mo. 613
• Decision Date: 18 December 1928
• Docket Number: 29079,29080,29087
• Parties: The State ex rel. Meda Porter, Administratrix of Estate of William S. Porter, v. Victor H. Falkenhainer, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

12 S.W.2d 481

321 Mo. 613

The State ex rel. Meda Porter, Administratrix of Estate of William S. Porter, v. Victor H. Falkenhainer, Judge of Circuit Court

Nos. 29079, 29080, 29087

Supreme Court of Missouri

December 18, 1928

Peremptory writ ordered in cause No 29080.

Foristel Mudd, Blair & Habenicht, Charles P. Noel and Glen Mohler for relator.

If the alternative writs in both the companion proceedings are quashed, for reasons which seem good to the court, then the writ requiring the granting of the appeal in the revivor proceeding ought to be made peremptory. Sec. 1469, R. S 1919.

H J. Nelson and Douglas W. Robert for respondent.

(1) Only parties to the record in a case are entitled to appeal. Sec. 1469, R. S. 1919; Evans v. Menefee, 1 Mo. 442; Zinc Co. v. Hesselmeyer, 50 Mo. 180; Tobin v. Bell Tel. Co., 199 S.W. 952. (2) The affidavit or application for appeal must show from what order the appeal is taken. Peacock Productions v. Paine, 289 S.W. 341.

OPINION

White, P. J.

William S. Porter obtained judgment in the Circuit Court of the City of St. Louis against the Chicago, Burlington & Quincy Railroad Company. A motion filed by a defendant for new trial was sustained. Porter appealed from that order and soon afterwards died. Meda Porter was appointed his administratrix. The purpose of these three proceedings is to secure the signing and filing of her bill of exceptions in the said cause now pending on appeal in this court.

In No. 29079 the relator prays this court to command the respondent, judge of the trial court, to make and enter all proper orders and rulings necessary to revive said cause in the name of Meda Porter, Administratrix.

In No. 29087 the relator seeks to have the respondent circuit judge grant her appeal from his rulings refusing to sign and make the order mentioned in No. 29,079.

In No. 29080 the relator prays a peremptory order of this court commanding the respondent circuit judge to sign and file a bill of exceptions, previously submitted and approved by him, in said original cause and make all necessary orders and rulings sufficient to make said bill a part of the record in said cause. It proceeds upon the theory that the cause has already been revived.

Thus it may be inferred, and correctly, that the relatrix has been endeavoring in various ways to get her record in the original case completed so that she may have the cause heard upon the merits in this court. If she is correct in her assumption that the cause has already been revived in her name, as plaintiff, administratrix, then Cause 29079 and Cause 29087 serve no useful purpose. Therefore we will first consider the merits of Case No. 29080.

William S. Porter brought his suit in the Circuit Court of the City of St. Louis against the C., B. & Q. Railroad Co., which claimed to be a foreign corporation, and against T. A. Briscoe and J. P. Murphy, resident defendants.

April 22, 1926, on a trial, a verdict was rendered in favor of Porter, against the said railroad company for ten thousand dollars, and against the plaintiff and in favor of the other defendants.

At the said term the defendant corporation within four days filed a motion for new trial, and, June 7, 1926, said motion was sustained.

June 9, 1926, Porter filed his affidavit for appeal from the order granting a new trial and his appeal was granted to the Supreme Court, where the cause is now pending.

October 17, 1926, Meda Porter, his administratrix, appeared in the Supreme Court in the cause of William S. Porter v. C., B. & Q. Railroad Co., suggested the death of Porter, the plaintiff, and prayed that the cause be revived in her name. An order of revivor was made, unconditional, without issuing scire facias, without the consent of the railroad company or its voluntary appearance.

December 17, 1926, respondent circuit judge signed plaintiff's bill of exceptions in Wm. S. Porter v. C., B. & Q. Railroad Co., and ordered it made a part of the record, though the plaintiff was dead. The bill of exceptions was presented by counsel who had represented said Porter in said cause and who at that time represented Meda Porter, the administratrix.

March , 1928, Meda Porter, administratrix, filed a petition in the Supreme Court in the case of William S. Porter against the Railroad Company, praying for a revivor of the cause in her name as plaintiff. A conditional order was made and scire facias issued, and duly served on the respondent company, thirty days before the first day of April term, 1928. The order directed the defendant to show cause, during the first four days of the April term, 1928, why such cause should not be revived. No cause was shown by the railroad company and the cause stood revived, under Section 1348, Revised Statutes 1919.

March 14, 1928, Meda Porter, administratrix, appeared in the Circuit Court of City of St. Louis in the case of William S. Porter v. C., B. & Q. Railroad Co., and obtained a conditional order of revivor in her name and writ of scire facias against the defendant railroad company requiring it to show cause. The railroad company appeared and filed its return tendering issue. The defendant company argued that the trial court had no jurisdiction to revive said cause. Respondent judge of said court thereafter refused to order such revivor and struck from the record the conditional order of revivor previously made.

May 4, 1928, Meda Porter, administratrix, appeared in said circuit court in case of Porter v. C., B. & Q. Railroad Co., and filed a certified copy of the order of the Supreme Court, reviving said cause in said Supreme Court, tendered a bill of exceptions, approved by the C., B. & Q. Railroad Co., and asked that the same be signed and filed and made a part of the record in said cause. The said circuit court refused to permit the filing of said bill of exceptions for reasons hereafter to be considered.

In the meantime the C., B. & Q. Railroad Co., started other proceedings, collateral to the main case, which proceedings tended further to muddle this record.

On June 8, 1926, the next day after the motion of the C., B. & Q. Railroad Co., in the main case, for new trial in the circuit court, was sustained, that company presented its petition for removal of the cause to the Federal court on the ground of a diversity of citizenship between it, the remaining defendant, and the plaintiff. On the same day the said order of removal was granted and cause removed. The next day Porter appealed to this court from the order sustaining the motion for new trial.

Seven days later, June 15th, William S. Porter, then living, filed in this court his application for certiorari directed to the circuit court seeking to bring to this court the record of said order of removal. While that certiorari proceeding was pending in this court, July 8th, William S. Porter died and Meda Porter was appointed administratrix.

On August 7, 1926, she presented in this court her suggestions of death and asked that she be substituted as relator in the certiorari case, and the cause was revived in her name, in due form.

June 27, 1927, this court quashed the record of the Circuit Court of the City of St. Louis, referred to, removing the cause of William S. Porter v. the C., B. & Q. Railroad Co., to the Federal court. [State ex rel. Porter v. Falkenhainer, 317 Mo. 707, 296 S.W. 386.]

July 18, 1927, the mandate of this court in that certiorari proceeding was filed in the Circuit Court of the City of St. Louis, and September 12, 1927, Meda Porter filed in the United States District Court her motion to remand the case of Porter v. C., B. & Q. Railroad Co., to the Circuit Court of the City of St. Louis.

On October 3, 1927, the C., B. & Q. Railroad Co., appeared in said Federal court, suggested the death of William S. Porter, and asked for a writ of scire facias against Meda Porter, administratrix. On the same day Meda Porter entered her voluntary appearance and the said cause was revived by the order of said court in the name of Meda Porter, administratrix, as plaintiff.

January 31, 1928, the Federal court sustained her motion and remanded the cause to the State circuit court.

August 9, 1927, the C., B. & Q. Railroad Co., brought suit in the United States District Court to enjoin Meda Porter, administratrix of said William S. Porter from further prosecuting the cause which said William S. Porter had begun in the State court. This injunction suit was dismissed January 31, 1928.

Thus we see that the relator's case, now pending in this court, is entangled in a snarl of technical difficulties and red tape with which it is strapped to collateral issues and proceedings. All this, it is claimed, prevents her cause from being heard on its merits in this court.

I. Relator asserts that the case pending here on appeal has been revived for all purposes. There is no doubt that the certiorari proceeding was properly revived in due form, but respondent objects to that because that is another proceeding collateral to the main case with different parties.

The cause was revived in the Federal court at the instance of the C., B. & Q. Railroad Co., while it was pending there after removal. The respondent says that order was a nullity; that the Federal court had no jurisdiction, because this court in the certiorari proceeding held that the trial court in ordering removal was without jurisdiction. The opinion of this court in that case (296 S.W. 386) held that the trial court was without authority to grant the petition for removal pending the time in which the plaintiff had the right to appeal to this court from said order.

The Federal court exercised its jurisdiction in ordering the cause remanded to the State court. By what rule of the Federal court or by what Federal sta...