State v. Becker
Citation | 293 S.W. 783 |
Decision Date | 02 March 1927 |
Docket Number | No. 26558.,26558. |
Parties | STATE ex rel. UNION BISCUIT CO. v. BECKER et al., Judges. |
Court | United States State Supreme Court of Missouri |
Grover, Tipton & Graves, of Kansas City, and Wilfley, Williams, McIntyre & Nelson, of St. Louis, for relator.
Lich & Miller, of St. Louis, for respondents.
Relator seeks to quash the record and judgment of the St. Louis Court of Appeals sustaining a judgment for plaintiff in the personal injury case of Maria Spina (Plaintiff), Respondent, v. Union Biscuit Company, a Corporation (Defendant), Appellant.
Counsel for relator with commendable point and brevity state their position as follows:
It is frankly conceded that conflict with controlling decisions of this court is not apparent on the face of respondent's opinion filed in the case, but relator claims recourse in the petition itself, and on the authority of State ex rel. National Newspapers' Association v. Ellison et al. (Mo. Sup.) 176 S. W. 11, loc. cit. 12, and State ex rel. Kansas City v. Ellison, 281 Mo. 667, loc. cit. 677, 220 S. W. 498, urges that we examine the petition which is referred to in the opinion and is a part of the record brought up by our writ. Before ruling this point in the instant case we deem it not inappropriate to review some of our case law pertinent thereto.
Since our decision in banc in State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S. W. 340, we have adhered to the doctrine that we can, by the common-law writ of certiorari given us by section 8 of the Amendment of 1884 to the Constitution, cause to be sent to this court the record of any cause decided by a Court of Appeals, wherein it appears that such court has failed to follow the last ruling of this court upon any doctrine of law or equity. Such exercise of our broad power of "superintending control" is in the interest of uniformity of judicial decision in this state on all issues of law and equity, and its propriety is no longer seriously questioned. State ex rel. Evans v. Broaddus, 245 Mo. 123, loc. cit. 135, 149 S. W. 473, Ann. Cas. 1914A, 823; Curtis v. Sexton, 252 Mo. 221, loc. cit. 252, 159 S. W. 512; State ex rel. Gilman v. Robertson, 264 Mo. 661, loc. cit. 672, 175 S. W. 610.
It was early ruled that this writ of certiorari was one of discretion and not of right (State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S. W. 473, Ann. Cas. 1914A, 823), and in State ex rel. Pedigo v. Robertson, 181 S. W. 987, loc. cit. 959, 990. a majority of this court agreed that the scope of the common-law writ of certiorari is thus correctly stated in 5 R. C. L. 264:
In the majority opinion, with the concurrence of a majority of the court on this point, Judge Faris said (loc. cit. 990):
This rule as to the scope and efficacy of the common-law writ of certiorari is consonant with reason and supported by the weight of authority. The opinion properly concludes that we may regulate the command of the writ in accordance with the purpose sought to be accomplished by the use of this extraordinary legal remedy, and that without impairing the remedy. However, without promulgating any court rule or handing down any decision clearly limiting the command of our writ in such cases, we have from time to time with some contrariety of expression said what we would and what we would not examine on the return to our writ.
In State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19, loc. cit. 36, 165 S. W. 729 732, Judge Brown, speaking for a majority of this court, said:
The latter part of this opinion, however, holds that the very information which occasioned these remarks was not necessary to a decision of the case, thus making these remarks obiter dicta.
In State ex rel. C., R. I. & P. Ry. Co. v. Ellison, 263 Mo. 509, 173 S. W. 690, Judge Bond, treating the above expressions as the controlling opinion of the court, applied them to the case in hand, but in this he received the specific concurrence of only two other judges, James T. Blair, J., concurring only in result.
In State ex rel. Gilman v. Robertson, 264 Mo. 661, 175 S. W. 610, the arguments for and against our power to issue these writs were respectively presented by Judge Graves, in the majority opinion, and by Judge Bond, in a dissenting opinion. The former is of prime importance in its bearing upon the question of what shall be examined on the return to the writ, because it constitutes a clear expression and holding of this court that the fundamental purpose of the exercise of this phase of our "superintending control" is to bring about "harmony in the law" to the end that one doctrine of law and equity shall apply in all appellate jurisdictions.
We now come to a case cited by relator herein, State ex rel. National Newspapers' Association v. Ellison, 176 S. W. 11. It was decided by this court in banc April 2, 1915, opinion by Graves, P. J., in which all concur except Brown, J., and Bond, J., who dissent, the latter on question of our jurisdiction only; Blair, J., not sitting. In this opinion it is said (loc. cit. 12), although the opinion of the Court of Appeals set forth the substance of the petition, that the petition would be looked at "being just as much a part of the record as is the opinion of the court." Here we have a definite ruling by this court that at least this much of the record in the Court of Appeals brought here by our writ of certiorari is the record in this court, and that we may examine the petition for the purpose of determining whether the Court of Appeals has decided the case according to the controlling decisions of the Supreme Court. If the doctrine applied in State ex rel. C., R. I. & P. Ry. Co. v. Ellison et al., 263 Mo. 509, 173 S. W. 690, supra, contravenes, it was here clearly overruled. As to the facts of the case, however, a different rule is thus announced:
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