State v. Arnold

Decision Date13 July 1927
Docket NumberNo. 27516.,27516.
Citation297 S.W. 59
PartiesSTATE ex rel. JOHNSON et al. v. ARNOLD et al.
CourtMissouri Supreme Court

Original proceeding by certiorari, at the relation of Nelson E. Johnson, Judge of Division No. 4 of the Circuit Court of Jackson County, and others, against Henry L. Arnold and others, Judges of the Kansas City Court of Appeals, and another, to review the record of that court in making permanent a writ of prohibition against relators. Opinion and record quashed.

Paul G. Koontz and John L. Gaylord, both of Kansas City, for petitioners.

Samuel Eppstein, of Kansas City, for respondents.

HENWOOD, C.

This is an original proceeding by certiorari to review the record of the Kansas City Court of Appeals in making permanent a writ of prohibition directed against the relators herein. Relators seek to quash the record of the Court of Appeals, alleging a conflict between the opinion of that court in the prohibition case mentioned and controlling decisions of this court.

In the original suit involved, the White Satin Sugar Company sued on an account and attached certain property. Judgment by default was rendered, and the attachment sustained. On the motion of one of the defaulting defendants, the default judgment was set aside and a new trial granted. From this ruling the judgment plaintiff (White Satin Sugar Company) appealed, and also applied to the Court of Appeals for a writ of prohibition to prevent a hearing by the circuit court of Jackson county on an interplea involving the ownership of the property attached, pending said appeal. The Court of Appeals issued a temporary writ of prohibition, and later, after a hearing on the merits, made the writ permanent.

As a preliminary matter, we sustain the motion of relators to strike from the files the return of the respondent White Satin Sugar Company. The writ of certiorari issued by this court being employed only for a review of the record of the Court of Appeals, the return of the White Satin Sugar Company serves no purpose and has no place in this proceeding. Section 8, art. 6, Const. Mo., amendment of 1884; State ex rel. v. Shocklee, 237 Mo. loc. cit. 469, 141 S. W. 614; State ex rel. v. Bland, 168 Mo. loc. cit. 7, 67 S. W. 580.

The opinion of the Court of Appeals, being short, will now be quoted in full. It reads as follows:

"Opinion of the Kansas City Court of Appeals.

"Original Proceeding in Prohibition.

"Relator herein, by writ of prohibition, seeks to prevent the court below from proceeding to the trial of the cause on its merits, after an appeal from a rule and order of said court sustaining a motion to set aside a default judgment and the granting of a new trial.

"The original suit was based upon an unpaid account for goods purchased and in order thereof an attachment was issued, wherein certain candy-making machinery was attached. There was a judgment by default for the amount of the claim and the attachment was upheld. Thereafter a motion for a new trial and to set aside the default judgment was sustained; from which ruling of the court relator appealed to this court, where the same is now pending. Later an amended petition in interpleader was filed by one of the parties defendant in the main suit, and the trial court proposed to proceed to a hearing of the case on its merits on the interplea.

"Upon this state of facts, relator applied to this court for relief, and a preliminary writ of prohibition was issued. Parties have filed briefs and the cause is now before us for a determination of the question of making the writ permanent. The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court, in sustaining defendants' motion for a new trial and in setting aside the default judgment, operates as a stay of all further proceedings and orders by the trial court in the case.

"The ownership of the property attached was the point directly involved in the original suit, and the questions form the basis of the interplea. It is relator's position that, where an appeal has been granted, as here, the court below can make no order in the case except to vacate the order of appeal. As shown by the record, which is properly certified by the clerk of the circuit court, no order vacating the order of appeal was made by the court. The record discloses that the appeal from the action of the court in sustaining the motion for a new trial was made on April 22, 1926, and that on May 8, 1926, the amended interplea was filed, and the court proposed to proceed with a hearing thereon.

"We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court granting a new trial, and we need not, therefore, discuss this point. It was held in Haven v. Ry. Co., 155 Mo. 216, 55 S, W. 1035 (opinion by Marshall, J.), that an appeal from an order of the circuit court brings only the ruling of the trial court before the appellate court for review; that the immemorial practice obtains in considering the sufficiency of the trial court's reasons for granting a new trial.

"The Supreme Court in Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303, held in effect, that an appeal to the Supreme Court from judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the cause; and this is true, although no appellant's bond was given and there was no supersedeas of the judgment, and pending the appeal the circuit court can make no order vacating the judgment (citing Ladd v. Couzins, 35 Mo. 513; De Kalb County v. Hixon, 44 Mo. 341). To the same effect is Oberkoetter v. Luebbering, 4 Mo. App. 481. The judgment herein appealed from, to wit, the order of the court sustaining defendants' motion for a new trial, is a final judgment, by default. Miller v. Crawford. 140 Mo. App. 711, 126 S. W. 984. The default judgment herein was final and an appeal from an order setting same aside was allowed. Under the law, such appeal operates as a stay of all further proceedings by the trial court until the pending appeal is determined. The cases and arguments presented in the very able It fief filed by defendants do not refute the plain sw in this respect,

"For the reasons herein stated, the preliminary writ of prohibition issued herein is hereby made permanent. Henry L. Arnold, J. "Bland, J., concurs. Trimble, P. J., absent."

We note that the opinion says:

"The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court in sustaining defendants' motion for a new trial and in setting aside the default judgment operates as a stay of all further proceedings and orders by the trial court in the case." (Italics ours.)

We note, also, that the opinion further says:

"We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court granting a new trial, and we need not, therefore, discuss this point." (Italics ours.)

However, a careful consideration of the opinion as a whole discloses that the conclusion reached by the learned judge, who wrote the opinion for the Court of Appeals, rests necessarily upon the assumption that the judgment appealed from was a final judgment and that the appeal in question was properly allowed. Moreover, it is expressly held in the opinion that the judgment appealed from was a final judgment, in the following language:

"The judgment herein appealed from, to wit, the order of the court sustaining defendants' motion for a new trial, is a final judgment by default. Miller v. Crawford, 140 Mo. App. 711, 126 S. W. 984. The default judgment herein was final, and an appeal from an order setting same aside was allowed. Under the law, such appeal operates as a stay of all further proceedings by the trial court until the pending appeal is determined." (Italics ours.)

With this holding before us, we go now to the question of alleged conflict. The question of a plaintiff's right of appeal from an order setting aside a judgment by default was squarely presented to the St. Louis Court of Appeals in the case of Bussiere v. Sayman, 171 Mo. App. 11, 153 S. W. 507, and that court held that the case was not appealable, but certified the same to this court because of the conflict between the decision in Cross-land v. Admire, 118 Mo. 87, 24 S. W. 154, and the decision in Miller v. Crawford, 140 Mo. App. 711, 126 S. W. 984. Being so certified, the case of Bussiere v. Sayman, 257 Mo. 303, 165 S. W. 796, was considered by this court (en banc), and Faris, J., for the court, reviewed the previous rulings of all of our appellate courts on this question and discussed the rulings in this and other jurisdictions with marked ability. In view of the confusion still existing among our courts on this proposition, we will quote extensively from that decision, as follows:

"Another strenuous contention of respondent, to wit, `that from an order of the court nisi sustaining the motion of defendant to set aside a judgment by default no appeal is given by our statute,' next deserves our attention. If this contention of respondent is well taken, we must dismiss this appeal. The St. Louis Court of Appeals dismissed it as not appealable; not because in their opinion no appeal lay, but because this court, in the case of Crossland v. Admire, supra, had held that no appeal lies in such case. In short, they give it as their opinion that we are in error in our holding here on this itching question, but they followed us as in duty bound. Section 6, Amendment of 1884 to Constitution [art. 6].

"There is no sort of doubt that the case of Miller v. Crawford, 140 Me. App. 711 , is in direct conflict with the holding of the...

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