State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon

• Decision Date: 09 February 1911
• Citation: 134 S.W. 538,232 Mo. 496
• Parties: THE STATE ex rel. ST. LOUIS DRESSED BEEF & PROVISION COMPANY v. J. P. NIXON et al., Judges
• Court: Missouri Supreme Court

134 S.W. 538

232 Mo. 496

THE STATE ex rel. ST. LOUIS DRESSED BEEF & PROVISION COMPANY v. J. P. NIXON et al., Judges

Supreme Court of Missouri

February 9, 1911

Peremptory writ awarded.

W. B. & Ford W. Thompson and Fred Armstrong, Jr., for relator; Ralph Crews of counsel.

(1) It has been decided in State ex rel. Dunham v. Nixon, that the Springfield Court of Appeals has no jurisdiction to try cases appealed from the circuit court of the city of St. Louis, and relator, on the authority of that case, refrains from further discussion on that point. (2) Prohibition is the proper remedy when a court of appeals attempts wrongfully to exercise jurisdiction under an unconstitutional statute, and even after mandate of the court of appeals and execution in pursuance thereof in the circuit court, it is not too late for prohibition to issue, provided the judgment has not been satisfied. Finkelnburg, Mo.App. Practice (2 Ed.), 198, 209 213; State ex rel. v. Sale, 188 Mo. 497; State ex rel. v. Elkin, 130 Mo. 109; State ex rel. v Rombauer, 105 Mo. 103; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 283; Klingelhofer v. Smith, 171 Mo. 462; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Hirzel, 137 Mo. 448. (3) When an appellate court under the Constitution has no jurisdiction, no act of the parties constitutes a waiver of jurisdiction so as to make valid a finding of that court. The situation of such a court, with its jurisdiction constitutionally defined, is not in this respect at all analogous to that of a circuit court. 2 Cent. Dig. Tit. Appeal and Error, secs. 88 to 99 and sec. 2185; 1 Dec. Dig. Tit. Appeal and Error, secs. 21 and 22; Ewing v. Brooks, 69 Mo. 49; Klingelhofer v. Smith, 171 Mo. 461; State ex rel. v. School Dist., 143 Mo. 89; Little v. Reid, 141 Mo. 246; May v. Garvis, 138 Mo. 449; Gordon v. Gray, 19 Colo. 167; Kansas City v. Zahner, 138 Mo. 454; Chipman v. Waterbury, 59 Conn. 496; Descalso v. San Francisco Court, 60 Cal. 296; Bailey v. Birkhofer, 123 Ia. 59. (4) The mandate of an appellate court, acting without jurisdiction, is null, and a circuit court has no power to act under such void mandate. If it should so attempt to act, prohibition is the proper remedy and it is not too late for prohibition to issue even after execution has issued, if the judgment has not been satisfied. Klingelhofer v. Smith, supra. (5) A court of appeals had no authority to issue a mandate to a circuit court not within its territorial jurisdiction. Constitution Mo. art. 6, secs. 12, 13, 14, 16 and 27; Amend. 1884, secs. 1, 2, 3, 4 and 7.

Joseph F. Coyle and Morrow & Kelley for respondents.

(1) Section 3 of the amendment to the State Constitution, adopted in 1884, giving the General Assembly power to create one additional court of appeals, and provide for the transfer of causes from one court of appeals to another court of appeals, and provide for the hearing and determination of such causes by the courts to which they may be transferred, is as follows: "Section 3. Court of appeals, one additional may be established -- districts, terms and pecuniary jurisdiction may be changed -- transfer of cases. The General Assembly shall have power by law to create one additional court of appeals, with a new district therefor; to change the limits of the appellate districts, and the names of the courts of appeals, designating the districts by numbers or otherwise; to change the time of holding the terms of said courts; to increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals; to provide for the transfer of cases from one court of appeals to another court of appeals; to provide for the transfer of cases from a court of appeals to the Supreme Court, and to provide for the hearing and determination of such cases by the courts to which they may be transferred." This section of the amendment stands to itself and is a grant of power to the Legislature to be exercised in the future. It has nothing whatever to do with the other provisions of the amendment and stands alone. All the other sections of the amendment are self-enforcing. The Constitution in plain language gives the Legislature power "to provide for the transfer of causes from one court of appeals to another court of appeals; . . . and to provide for the hearing and determination of such causes by the courts to which they may be transferred." If the Legislature by authority of this grant of power had the right "to provide for the transfer of cases from one court of appeals to another court of appeals" and "to provide for the hearing and determination of such cases by the courts to which they may be transferred," surely it had a right to pass the act of June 12, 1909, for that is exactly what it did. This act simply provides for the transfer of causes and gives the courts to which they may be transferred power to hear and determine the same. Broader language cannot be imagined. In re Garesche, 85 Mo. 469; Bond v. Carter, 96 Tex. 359. "Authority to hear and determine a cause is jurisdiction to try and decide all the questions in the controversy." Onarl v. Abbett, 102 Ind. 253; 52 Am. Rep. 662; Commonwealth v. Simpson, Grant Cas. (Pa.) 438; 4 Words and Phrases, 3235; State ex rel. v. Stobie, 194 Mo. 45; State ex rel. v. Withrow, 108 Mo. 1; Gray v. Bowles, 74 Mo. 423; 11 Cyc. 659; 17 Am. and Eng. Ency. Law (2 Ed.) 1041. Clearly, the Legislature had authority to pass the act in question if ordinary meaning is given to the plain words of the Constitution. (2) While in ordinary cases the jurisdiction of the several courts of appeals is only co-extensive with their districts and appeals come from and writs of error run only to the courts in the counties comprising their several districts, yet in the cases transferred under the statute the court to which the cause is transferred is vested by the statute itself with jurisdiction, regardless of the place of the origin of the cause, or the county from which the appeal comes. The statute does not attempt to limit the transfer of cases simply to the territorial appellate district of the several courts of appeals. But the purpose was to transfer causes arising in one appellate district to the court of another appellate district, so that they might be speedily heard and determined. The Constitution having given the Legislature the broad power to provide for the transfer of cases from one court of appeals to another, and to provide for the hearing and determination thereof by such courts without restriction as to appellate districts, there can be no constitutional objection to the statute which gives jurisdiction to the courts of appeals arising outside of their respective appellate districts. Bond v. Carter, 96 Tex. 359. If so, a statute providing for change of venue which confers jurisdiction upon a court of another district when a cause has been properly transferred to it, would be unconstitutional. (3) The Act of 1909 is presumed to be constitutional until the contrary plainly appears. Deal v. Mississippi Co., 107 Mo. 464; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Yancy, 123 Mo. 391; Edwards v. Lesueur, 132 Mo. 410; State ex rel. v. Fort, 210 Mo. 526; State ex rel. v. McIntosh, 205 Mo. 602; State ex rel. v. Warner, 197 Mo. 656; State v. Layton, 160 Mo. 499. We most respectfully and earnestly contend that the decision rendered by this court in the case of State ex rel. Dunham v. Nixon, is in direct conflict with the plain and express language and provisions of the Constitution of Missouri, hereinbefore set out, and is in direct conflict with all the authorities above cited, and for these reasons should be overruled. We respectfully submit that the opinion in the Dunham-Nixon case supra, does not refer to a single constitutional provision nor cite a single authority in support of the ruling made therein. Even though the St. Louis Court of Appeals had no authority to transfer the cause to the Springfield Court of Appeals, plaintiff herein conferred jurisdiction on said Springfield court by filing his abstract of records and briefs, and appearing by counsel and orally arguing said cause in said Springfield court, and asking said court to decide said cause in his favor. In the case at bar, plaintiff herein not only filed his abstract, brief and reply brief in the Springfield court, but appeared by counsel in said Springfield court and orally argued the cause, and not until after he had had his day in court, and the judgment of the circuit court had been affirmed by the Springfield court, did he ever in any manner attempt to question the jurisdiction of said court.

FERRISS, J. Woodson, Graves, Kennish and Brown, JJ., concur; Valliant, C. J., and Lamm, J., dissent.

OPINION

In Banc.

Prohibition.

FERRISS J.

This is an application for a writ of prohibition against the judges of the Springfield Court of Appeals and a judge of the St. Louis Circuit Court to prevent further action in this case, which was transferred to the Springfield Court of Appeals from the St. Louis Court of Appeals.

The application is based upon the following facts:

At the October term, 1906, of the circuit of the city of St. Louis one William Moudy, as plaintiff, obtained a judgment against the St. Louis Dressed Beef & Provision Company, a corporation, for personal injuries, in the sum of $ 5000. The case was appealed to this court, and was later transferred from this court to the St. Louis Court of Appeals. Subsequently to this, and while the case was pending in the St. Louis Court of Appeals, it was transferred to the Springfield Court of Appeals by virtue of the provisions of section 3939, Revised Statutes 1909, authorizing such transfers. Thereafter the case was docketed in the Springfield Court of Appeals, and the original defendant, p...