State ex rel. Scott v. Smith

Decision Date15 June 1903
PartiesTHE STATE ex rel. SCOTT v. SMITH et al., Judges
CourtMissouri Supreme Court

Writ awarded (with directions).

Adiel Sherwood and Scarritt, Griffith & Jones for relator.

(1) The Kansas City Court of Appeals has no original jurisdiction to try a case of this kind, unless the proceedings are originally instituted in that court. Const., sec. 12, art. 4; sec. 22, art. 6; sec. 4, amend. 1884; ch. 73, R. S. 1899. (2) The filing of the motion for a change of venue, as decided by the Court of Appeals, divested the lower court of jurisdiction. Gale v. Michie, 47 Mo. 328; Lacy v. Barrett, 75 Mo. 469; Barnes v. McMullins, 78 Mo. 266; Dawson v. Dawson, 29 Mo.App. 523; State v. Schaffer, 36 Mo.App. 589; State v. Hayes, 81 Mo. 574; sec. 819, R. S. 1899. (3) This case was before the court upon an appeal, with a record containing exceptions to certain rulings and judgments of the lower court, with assignment of errors as to such matters, and briefs and arguments thereon. The Court of Appeals, therefore, was clothed with appellate jurisdiction only. At least it had no greater jurisdiction than the trial court, the general rule being that on appeal the jurisdiction of the upper court depends upon the previous jurisdiction of the lower court and if that fail, the appeal should be quashed. Gregory v. Williams, 24 Ark. 177; Dunnington v. Bailey, 27 Ark. 508; Ide v. Sayer, 129 Ill. 230, 21 N.E 810; Haney v. Sharp, 31 Ky. (1 Dana) 442; Burbage v. Squires, 6 Ky. (3 Metc.) 77; Bullitt v. Commonwealth, 77 Ky. (14 Bush) 74; Osgood v Thurston, 40 Mass. (23 Peck) 110; Abernathy v Moore, 83 Mo. 65; Poole v. Brown, 12 S.C. 556; Baker v. Chisholm, 3 Tex. 157; Able v. Bloomfield, 6 Tex. 263; Hearn v. Culberth, 10 Tex. 216; Moore v. Hildebrant, 14 Tex. 312 (65 Am. Dec. 115); Richardson v. Denison (Vt.) 1 Crik. 210; Thompson v. Colony, 6 Vt. 91; Stringham v. Board Com. of Winnebago Co., 24 Wis. 594; Connors v. Gorey, 32 Wis. 519; Ryder v. Holt, 128 U.S. 525.

Gardiner Lathrop, F. F. Rozzelle, Frank F. Brumback, R. E. Ball and H. M. Beardsley for respondents.

(1) A writ of certiorari brings up only the record, and upon a hearing the Supreme Court will only inquire whether there are any jurisdictional defects apparent therein. Matters of error or irregularity will not be considered. State v. Smith, 73 So. 211; State v. Smith, 101 Mo. 174; Railroad v. State Board, 64 Mo. 294; State v. Edwards, 104 Mo. 125; State v. Dobson, 135 Mo. 1. (2) The filing of the application for a change of venue in the circuit court did not divest that court of jurisdiction. It had the right to pass on the application, and having the right to adjudge whether the application was in due form and filed in proper time, its action, if wrong, might be reviewed on appeal, but can not be attacked collaterally. Colvin v. Six, 79 Mo. 198; Railroad v. Railroad, 118 Mo. 619; Re Whitson's Estate, 89 Mo. 58; State v. Noland, 111 Mo. 473. (3) The order of circuit court refusing change of venue was not even error. No right to change of venue existed. If a right did exist, the application was too late, being made after trial began, and long after day for answer (if any was required) had passed. Any right had been waived because not presented at once after knowledge of existence of causes therefor. The application is not in proper form. A refusal of change by court below can not prejudice defendant, because the Court of Appeals should pass on all the evidence de novo, as in an equity case. (a) As to right to change: R. S. 1899, sec. 4933; R. S. 1899, sec. 818; Sutton v. Cole, 155 Mo. 206; s. c., 73 Mo.App. 518; In re Bowman, 7 Mo.App. 568. (b) Too late after trial begun: Junior v. Railroad, 127 Mo. 79. (c) Too late after answer day: Jenkins v. Hill, 57 Mo. 122. (d) Too late because shows delay after knowledge of causes: State v. Mallock, 82 Mo. 455; Wolf v. Ward, 104 Mo. 127; Thompson v. Marshall, 50 Mo.App. 145. (e) Application not in proper form: Railroad v. Holliday, 131 Mo. 440; Raming v. Railroad, 157 Mo. 477; R. S. 1899, sec. 821. (f) This case was triable in Court of Appeals de novo: State v. Davis, 92 Tenn. 634; s. c., 23 S.W. 59. (4) The judgment of the Court of Appeals can not be overturned even if the reasoning on which it is based is wrong. It would not be in a direct proceeding and much less on a collateral attack by certiorari. Johnson v. Franklin Bank, 73 So. 191; Ittner v. Hughes, 133 Mo. 679. (5) The Court of Appeals had jurisdiction of the case by the appeal and had also original jurisdiction to try the matter in the first place, even irrespective of any statute. Its judgment was not void because, by the express terms of the statute, it had power, even as an appellate court, to render the judgment. It also, under the general law, had power to hear the whole case de novo on the record as an equity case, and render such judgment as was proper. State ex rel. v. Harber, 129 Mo. 271; State v. Laughlin, 10 Mo.App. 1; R. S. 1899, sec. 866; Murdock v. Genehl, 47 Mo. 135; State v. Davis, 92 Tenn. 634; s. c., 23 S.W. 59; Campbell v. Hoff, 129 Mo. 317. (6) The record shows most conclusively that no other judgment could have been rendered by any court, and the Court of Appeals was therefore right in holding that if refusal of change of venue was error, still it was immaterial, and this court would not interfere even on appeal, because on the facts confessed of record, but one result could follow. R. S. 1899, sec. 865; Comfort v. Ballingal, 134 Mo. 281; Goodrick v. Harrison, 130 Mo. 263.


In Banc



The proceeding in this court is a writ of certiorari directed to the judges of the Kansas City Court of Appeals, requiring them to send to this court the record and proceedings in a matter pending before them on appeal from the circuit court of Jackson county, at Kansas City, Division No. 1, entitled "In the matter of proceedings to remove William J. Scott from practice as an attorney at law."

The issuance of the writ by this court directed to the judges of the Kansas City Court of Appeals, springs from a proceeding instituted in the circuit court of Jackson county to disbar the relator, who was a practicing attorney. On January 13, 1900, there was filed in the office of the clerk of the circuit court of Jackson county, a petition signed by Gardiner Lathrop, F. F. Rozzelle, Frank F. Brumback, R. E. Ball and H. M. Beardsley, who represented themselves to be a committee appointed by the Kansas City Bar Association to file and prosecute proceedings for disbarment against Mr. Scott. This petition alleged that Mr. Scott had been guilty of improperly retaining his clients' money and of deceit in his professional capacity. Mr. Scott was cited to answer said charges.

On June 16th the parties appeared for trial, and Mr. Scott filed an application for a change of venue on the ground that the judge of said division was an active member of the Kansas City Bar Association, and was therefore interested in said cause and was also personally prejudiced against Mr. Scott, and that Scott could not have a fair trial before him. This application was denied. Mr. Scott then filed his answer in said cause, which was a general denial of the charges. He then moved the court to impanel a jury to try the cause, and this motion was also denied.

The court, then, over Scott's protest, heard the evidence and on June 22, 1900, rendered judgment of disbarment against Mr. Scott. Motions in arrest and for new trial were duly filed and overruled, and a bill of exceptions in due and regular form was by the court signed, sealed, approved, allowed and ordered to be filed as part of the record in said cause.

This cause was argued and submitted to the Kansas City Court of Appeals on December 3, 1900, and it is asserted by relator that after consideration the said Court of Appeals filed its written opinion in said cause, and after deciding and holding that the lower court had committed error, proceeded to assume original jurisdiction itself, and rendered a judgment of disbarment against Mr. Scott without affirming, reversing, modifying or correcting the decision of the lower court. On March 13, 1902, Mr. Scott filed in said court his motion for a rehearing which was by the court overruled. Mr. Scott then petitioned this court for a writ of certiorari, which was granted, served and due return thereof made to this court, and the record is now before us for final disposition.

That we may fully comprehend and appreciate the action of the Kansas City Court of Appeals, in respect to the disbarment proceeding pending in that court, we here quote the opinion announced in that case:

"On January 13, 1900, a complaint was filed in the circuit court by Gardiner Lathrop, Frank F. Rozzelle, R. E. Ball, Henry M Beardsley and Frank F. Brumback, in which it is alleged that they were each and all attorneys at law, duly and regularly licensed, enrolled and practicing in the circuit court of Jackson county, Missouri; that they were each and all members of the Kansas City Bar Association and were appointed as a committee to present to that court and prosecute therein charges against William J. Scott, an attorney at law practicing at the bar of said court, for improperly retaining his clients' money and for deceit in his professional capacity as such attorney and to petition this court for the removal of said William J. Scott from practice as an attorney at law. And as such committee, and individually as attorneys as aforesaid, it was in said complaint charged by them that on the 9th day of June, 1879, William J. Scott was by the circuit court of Jackson county, at Kansas City, duly and regularly licensed and enrolled as an attorney at law, and upon such date last named duly and regularly...

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