State ex rel. Waddill v. Smith

• Decision Date: 26 November 1895
• Parties: The State ex rel. Waddill v. Smith et al., Judges
• Court: Missouri Supreme Court

33 S.W. 11

131 Mo. 176

The State ex rel. Waddill v. Smith et al., Judges

Supreme Court of Missouri, First Division

November 26, 1895

Peremptory writ awarded.

M. W Huff and Brown & Pratt for relator.

(1) This court has superintending control over the Kansas City court of appeals and may exercise the same in cases like that under consideration by mandamus. State ex rel. v Philips, 96 Mo. 570; State ex rel v. Philips, 97 Mo. 331. (2) The court of appeals has jurisdiction only of such causes as do not come within the appellate jurisdiction of this court. It follows, therefore, that if, in the case of Hannum against the National Temperance Relief Union, the superintendent of insurance was a party so that his rights as such superintendent were before the court for adjudication that court had no jurisdiction to proceed otherwise than to cause the case to be certified to this court, which alone had jurisdiction to adjudicate it. Const., art. 6, sec. 12, and amendment establishing Kansas City court of appeals, sec. 5; Reichenbach v. Ellerbee, 115 Mo. 331. (3) The state superintendent of insurance was a state officer and his failure to seasonably move to transfer the cause to the supreme court did not confer jurisdiction on the court of appeals.

Lander & Johnson for respondent.

OPINION

Mandamus.

Brace P. J.

This is a proceeding by mandamus. The relator is the superintendent of the insurance department of the state of Missouri. The respondents are the judges of the Kansas City court of appeals. The question arises upon a demurrer to the respondents' return to the alternative writ. The facts disclosed by the pleadings are, that:

On the twenty-eighth of September, 1893, judgment was rendered in the circuit court of Linn county in the case of Lillian N. Hannum, plaintiff, against the National Temperance Relief Union, defendant, in favor of said plaintiff for the sum of $ 1,070.08. On the first day of March, 1894, an appeal from that judgment was granted defendant to the Kansas City court of appeals with leave to file bill of exceptions at any time prior to the fifteenth day of July, 1894. Said bill of exceptions was filed on the twenty-eighth day of June, 1894. On the fourth of August, 1894, in a proceeding instituted in the circuit court of Buchanan county by the relator as superintendent as aforesaid, against the said National Temperance Relief Union, defendant, the said defendant was adjudged to be insolvent and by the decree of said court enjoined from further carrying on business in this state, the corporation dissolved, and the title to its assets at once vested in the relator as superintendent as aforesaid, with directions to wind up its affairs under the statute, and the further orders of said court.

On the fifteenth of September, 1894, there was filed in said court of appeals a duly certified copy of said judgment of the Linn circuit court, in the cause appealed as aforesaid, under the provisions of section 2253, Revised Statutes, 1889. Afterwards, at the March term, 1895, of said court of appeals, the plaintiff in said cause (in pursuance of notice served upon said defendants' attorneys that such a motion would be presented to said court on the fourth day of March of said term) filed his motion to affirm the judgment under section 2252 on the ground that defendant had not prosecuted its appeal. Afterwards, on the eighth day of March, 1895, the relator filed his motion to be substituted as party appellant and defendant in said cause, by virtue of the decree of the Buchanan circuit court aforesaid; also his motion to transfer said cause to the supreme court because a state officer is a party to said cause.

Afterward during said term, and on the first day of April, 1895, these several motions having been considered by said court, the plaintiff's motion to affirm the judgment was sustained, and the relator's motions to be substituted as prayed for and to transfer the cause to this court were overruled. Thereupon the relator filed his motion for rehearing, which was also overruled, and the judgment of the...