State ex rel. Title Guaranty & Trust Co. v. Broaddus

• Decision Date: 27 February 1908
• Citation: 108 S.W. 544,210 Mo. 1
• Parties: STATE ex rel. TITLE GUARANTY & TRUST COMPANY v. BROADDUS et al., Judges Kansas City Court of Appeals
• Court: Missouri Supreme Court

108 S.W. 544

210 Mo. 1

STATE ex rel. TITLE GUARANTY & TRUST COMPANY v. BROADDUS et al., Judges Kansas City Court of Appeals

Supreme Court of Missouri

February 27, 1908

Peremptory writ awarded.

Thos H. Sprinkle and Edward J. O'Brien for relator.

(1) If the order dismissing relator's appeal for want of jurisdiction by the Kansas City Court of Appeals because of the error in the affidavit for appeal herein before the Dade Circuit Court, was erroneous, then mandamus will lie. Const art. 6, sec. 3; State ex rel. v. Philips, 97 Mo 331; State ex rel. v. Laughlin, 75 Mo. 366; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Gibson, 184 Mo. 507; State ex rel. v. Broaddus, 105 S.W. 629; 13 Ency. Pl. & Pr., 537; Elliott on App. Proc., sec. 514; sec. 871, R. S. 1899. (2) The allowance of the appeal by the circuit court in session during the term at which the judgment therein -- sought to be appealed from -- was rendered constituted a valid appeal, of which the appellee was bound to take notice, because the order allowing the appeal has the effect of transferring the jurisdiction of the case to the appellate court and continues it therein on appeal. State ex rel. v. Gates, 143 Mo. 63; Macklin v. Allenberg, 100 Mo. 343; secs. 806, 808, 809, 810, 812, and 813, R. S. 1899; Haven v. Railroad, 155 Mo. 226; Cooley v. Railroad, 149 Mo. 492; St. Louis Bridge Co. v. Railroad, 72 Mo. 664; Harrison v. Lakenan, 189 Mo. 581; Woods v. Railroad, 188 Mo. 229; DeBolt v. Railroad, 123 Mo. 496; Edmonston v. Bloomshire, 7 Wall. (U.S.) 307; Railroad v. Blair, 100 U.S. 661; Peugh v. Davis, 110 U.S. 227; Dodge v. Knowles, 114 U.S. 430; Hewitt v. Filbert, 116 U.S. 142. The order allowing the appeal herein is the criterion of jurisdiction, and not the affidavit for appeal; the latter is amendable. Crum v. Elliston, 33 Mo.App. 591; Bergesch v. Keevil, 19 Mo. 127; Launius v. Cole, 51 Mo. 147; Morquey v. Birkhead, 34 Mo. 214; Manion v. State, 11 Mo. 578; Melcher v. Scruggs, 72 Mo. 406; Barker v. Collins, 3 Mo. 315. (3) The judicial order properly made allowing the appeal is not and cannot be compared to the affidavit which precedes it, inasmuch as the affidavit is the mere act of the individual litigants or their agent acting for them therein, whilst the order is in the nature of the act of the sovereign judicially determined, and when the effect of such order or affidavit is to determine judicial right, then there can be no comparison between the two things. The order dismissing the appeal in this case being virtually an affirmance of the judgment in the court below, because of an imperfection in the affidavit, ignores the order of appeal. Harrison v. Lakenan, 189 Mo. 581; Woods v. Railroad, 188 Mo. 229; State ex rel. v. Gates, 143 Mo. 63; Cooley v. Railroad, 149 Mo. 492; Edmondston v. Bloomshire, supra; Railroad v. Blair, 100 U.S. 661; Peugh v. Davis, 110 U.S. 227; Dodge v. Knowles, 114 U.S. 430; Perkins v. Mason, 105 Mo.App. 317. (4) The respondent before the Court of Appeals duly appeared to the March term, 1907, at which term the appeal was returnable, and duly docketed for hearing therein on April 3, 1907, whereupon the appellant and appellee stipulated in writing filed in said Court of Appeals that the said cause be continued over that term and to the October term, 1907, of said Court of Appeals. Therefore, as the appellee therein appeared in the appellate tribunal generally, the same constituted an entry of appearance and waived any jurisdictional defect, such as is here insisted on, and it is estopped from taking any advantage thereof, as a continuance of a case by agreement of parties is tantamount to a general appearance and waives jurisdiction. Baisley v. Baisley, 113 Mo. 544; Bohn v. Devlin, 28 Mo. 319; Higgins v. Beckwith, 102 Mo. 464; Peters v. Railroad, 59 Mo. 406; Cooley v. Railroad, 149 Mo. 491; Auspach v. Ferguson, 71 Iowa 144; Wilgus v. Gettings, 19 Iowa 82; Roundy v. Kent, 75 Iowa 662; Hanson v. Hoitt, 14 N.H. 56; Fitzpatrick v. Cottingham, 14 Wis. 219; Bombeck v. Bombeck, 18 Mo.App. 26; St. Louis Bridge Co. v. Railroad, 72 Mo. 668; Wilson v. Kelly, 81 Pa. St. 411; Coby v. Halthusen, 16 Col. 10; Robertson v. O'Rielly, 14 Col. 441.

Edw. J. White and Edgar P. Mann for respondents.

(1) Mandamus will not lie to compel a subordinate court to reinstate an appeal which it has dismissed after full and fair consideration of the record. State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Neville, 110 Mo. 348; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 374; High, Extra. Leg. Rem. (2 Ed.), 191-247; Ex parte Newman, 14 Wall. 152; Ex parte Brown, 116 U.S. 401; State ex rel. v. Wright, 4 Nev. 119; People ex rel. v. Weston, 28 Cal. 639; Francisco v. Ins. Co., 36 Cal. 283; Wells v. Stackhouse, 2 Harr. (N. J.) 355; Swinickson v. Corwin, 2 Dutch. 311; People v. Judges, 20 Wend. 658; Coheen v. Myers, 11 B. Mon. 423. (2) The affidavit for appeal signed by Thomas H. Sprinkle was insufficient to confer jurisdiction of the appeal on the Kansas City Court of Appeals. Thomas v. Ins. Co., 89 Mo.App. 12; Schnabel v. Thomas, 92 Mo.App. 180; United Iron Works Co. v. Lead & Zinc Co., 102 S.W. 1104; Railroad v. Powell, 104 Mo.App. 362. (3) A failure to comply with any of the statutory conditions governing appeals will render an appeal inoperative, as the right of appeal did not exist at common law. Robinson v. Walker, 45 Mo. 117; St. Louis v. Gunning Company, 138 Mo. 347; Green v. Castello, 35 Mo.App. 127; James v. Robinson, 1 Mo. 595; Bernecker v. Miller, 37 Mo. 498; McClelland v. Shaw, 51 Mo. 440; Thomas v. Finley, 3 Mo. 288; State ex rel. v. Kenchler, 83 Mo. 193; Lengle v. Smith, 48 Mo. 276; Stavely v. Kunkel, 27 Mo. 422; Gill v. Scruggs, 79 Mo. 187; State v. Rhodes, 86 Mo. 635; Guy v. May, 141 Mo. 441; Allen v. Britton, 141 Mo. 173; Long v. Hawkins, 178 Mo. 103; Lindsay v. Thomas, 10 Ohio St. 452; Luther v. Edgerton, 90 Cow. 227; Ex parte Shethar, 4 Cow. 540; Clark v. Conn., 1 Munf. 160; Gibson v. Lynch, 1 Munf. 495; Moore v. Winkler, 3 Mo.App. 596. (4) "The respondent cannot waive the question of defective affidavit for appeal, or estop himself to urge its insufficiency by appearing in the appellate court and consenting to a continuance." Railroad v. Powell, 104 Mo.App. 362. (5) Nor can the statutory essentials governing appeals be waived in any case, for the reason that jurisdiction of the subject-matter cannot be affected by the acts of the parties litigant. State ex rel. v. Woodson, 128 Mo. 514; Peters v. Edge, 87 Mo.App. 283; Sehested v. Kansas City, 68 S.W. 1068; Thomas v. Finley, 3 Mo. 288; Railroad v. Powell, 104 Mo.App. 362; Giesing v. Schowengerdt, 24 Mo.App. 554. (6) The alternative writ on its face shows that there was not sufficient ground for this court, as a court of equity, to grant the relator the relief prayed for, as there is no showing that its counsel, Thomas H. Sprinkle, was unable to read the affidavit filed in the trial court, and his own brief and argument admit that it was his inadvertence and no act of the trial court or its officers or opposing counsel that caused him to fail to comply with the statutory prerequisites governing the appeal of the relator. Harding v. Bedoll, 202 Mo. 629.

BURGESS, J. Gantt, C. J., Valliant, Fox and Lamm, JJ., concur; Woodson, J., dissents; Graves, J., agrees to all that is said as to the sufficiency of the affidavit in question.

OPINION

In Banc.

Mandamus.

BURGESS, J.

-- This is a proceeding by mandamus to require the judges of the Kansas City Court of Appeals to set aside its order dismissing an appeal in the case of the Farmers' State Bank of South Greenfield against the Title Guaranty & Trust Company of Scranton, Pennsylvania, pending in said court, to reinstate said cause, and proceed to hear and determine the same.

The following is a brief summary of the facts:

On July 18, 1906, in the circuit court of Dade county, the Farmers' State Bank of South Greenfield, Missouri, was awarded judgment for $ 1,898.85 against the Title Guaranty & Trust Company of Scranton, the relator in this proceeding. On the same day, after unavailing motions for a new trial and in arrest of judgment, the relator filed its affidavit praying an appeal to the Kansas City Court of Appeals, which affidavit, omitting caption, reads as follows:

"Thos. H. Sprinkle, the agent and attorney for defendant in the above-entitled cause, being sworn upon his oath, says that the appeal prayed for by him is not made for vexation or delay, but because he considers himself aggrieved by the judgment and decision of the court.

"Thos. H. Sprinkle.

"Agent and Attorney.

"Subscribed and sworn to before me this 18th day of July, A. D. 1906.

"C. A. Ketchum, clerk,

"By John A. Davis, D. C."

Thereupon, the circuit court made the following order granting the appeal:

"Now, at this day, the affidavit and application for appeal coming on to be heard, the court having seen, heard and fully understood all the matters and things contained in said application, the same is by the court granted to the Kansas City Court of Appeals."

Thereafter, on September 6, 1906, the relator, as appellant in said cause, in lieu of a complete transcript, caused a certified copy of the record entry of the judgment appealed from, together with the order granting the appeal, to be filed in the Kansas City Court of Appeals, and filed in said court an abstract in lieu of a complete transcript in said cause.

Thereafter on February 14, 1907, counsel for the parties filed a stipulation agreeing that the cause, on account of the fact that the bill of exceptions was necessarily filed too late to properly brief and prepare the case for argument, be continued to the October term, 1907, of said appellate court,...