State v. Broaddus

• Decision Date: 25 April 1911
• Citation: 234 Mo. 331,137 S.W. 271
• Parties: STATE ex rel. CAULFIELD v. BROADDUS et al., Judges.
• Court: Missouri Supreme Court

137 S.W. 271

234 Mo. 331

STATE ex rel. CAULFIELD v. BROADDUS et al., Judges.

Supreme Court of Missouri.

April 25, 1911.

1. MANDAMUS (§ 164)—PLEADING—GENERAL DENIAL IN RETURN—EFFECT.

A general denial in the return to an alternative writ of mandamus may be disregarded as not a sufficient traverse of the allegations of the writ.

2. MANDAMUS (§ 166)—PLEADING—REPLY TO RETURN—ISSUES.

A reply to the return to an alternative writ of mandamus which does not traverse the material facts of the return, but which prays for the issuance of the peremptory writ, may be treated as a demurrer to the return, and the cause considered at issue.

3. APPEAL AND ERROR (§ 586)—RECORD—RECITALS IN ABSTRACT OF RECORD—SUFFICIENCY.

A recital in the abstract of the record proper of the filing of the affidavit for appeal, and of the allowance of an appeal, is sufficient to confer jurisdiction on the appellate court, though neither the affidavit nor its substance appears in the abstract.

4. MANDAMUS (§ 57)—COMPELLING EXERCISE BY COURTS OF JURISDICTION.

Where a court of appeals has improvidently dismissed a case appealed to it, mandamus lies to compel it to exercise its jurisdiction to hear and determine the case.

In Banc. Mandamus by the State, on the relation of William Caulfield, against Elbridge J. Broaddus and others, Judges of the Kansas City Court of Appeals. Peremptory writ awarded.

R. J. Holmden and W. C. Reynolds, for relator.

KENNISH, J.

This is an original proceeding by mandamus, brought by William Caulfield, as relator, against the judges of the Kansas City Court of Appeals, as respondents. It appears from the allegations of the alternative writ that relator appealed from a judgment rendered against him in the circuit court of Jackson county to the Kansas City Court of Appeals. The cause was placed upon the docket for hearing, and was submitted on briefs for decision in the latter court; but the court dismissed the appeal for the alleged failure of relator, as appellant, to comply with the rules of the court. Relator filed a motion praying the court to set aside this order and judgment dismissing his appeal, and praying that the cause be reinstated on the docket for determination on the merits. That motion was overruled, and thereafter this court, upon relator's petition, issued its alternative writ of mandamus to the respondents, commanding them to reinstate said cause on the docket for hearing and determination, or to show cause why they should not do so.

The respondents filed a return, pleading affirmatively substantially the same facts set forth in the alternative writ, also a general denial. Relator filed a reply, which does not traverse the material facts of the return, but, in effect, raises issues of law, and prays the court to issue its peremptory writ.

The general denial in respondents' return may be disregarded as not a sufficient traverse of the allegations of the writ. State ex rel. v. Allison, 155 Mo. 325, 56 S. W. 467; State ex rel. v. Williams, 96 Mo. 13, 8 S. W. 771; State ex rel. v. Trammel, 106 Mo. 510, 17 S. W. 502. And as relator's reply does not raise an issue of fact, but prays the issuance of the peremptory writ, it may be treated as a demurrer to the return, and the cause considered at issue. State ex rel. v. Newman, 91 Mo. 445, 3 S. W. 849.

The facts, as gathered from the pleadings and necessary to an understanding of the case, are substantially as follows: A judgment was entered against relator in the circuit court of Jackson county on the 15th day of April, 1909. Relator appealed from that judgment to the Kansas City Court of Appeals by what is known as the short form of appeal, and no question was raised in the said Court of Appeals, or is now raised, as to relator's compliance with the statute in that regard. The case was set for hearing on the docket of the said Court of Appeals on April 12, 1910. A printed abstract of the record, consisting of two parts, namely, the record proper and the bill of exceptions, was served on the respondent, and copies filed with the clerk of the Court of Appeals, as required by the rules of the court.

At the hearing the cause was submitted by the parties on briefs, and respondent therein raised no question, by supplemental abstract, or otherwise, as to the regularity of the appeal or the sufficiency of the abstract of the record. The court, on the 6th day of June, 1910, delivered the following opinion, dismissing relator's appeal, to wit: "This is an action in replevin for a lot of personal property, which was begun before a justice of the peace. On appeal to the circuit court, judgment was rendered for the plaintiff. The appeal is taken by what is known as the short form. The abstract of the record proper does not contain the affidavit for appeal, nor its substance. We have no means of ascertaining if it was sufficient to confer jurisdiction of the appeal on this court. It is not even recited that the trial court found it sufficient. Our rules require that the affidavit for appeal must be abstracted as a part of `the entire record,' as authorized by section 813, R. S. 1899. The point is directly decided in Shemwell v. McKinney, 214 Mo. 692 , and Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407, 408 . An affidavit is set out in the abstract of the bill of exceptions; but we have decided time and again that it is not a matter of exception, and has no place in such bill. It must appear in the record proper. The appeal will be dismissed."

After setting out the foregoing opinion, the return of the respondents to the alternative writ herein continues as follows: "Respondents further say that they have full power and authority to determine said question. The question of the sufficiency of said abstract was for these respondents in their official capacity, as judges of the Kansas City Court of Appeals, to decide, and if their decision was erroneous it was only error; that the Supreme Court is without authority of law by their writ of mandamus to compel the respondents to set aside and vacate the order, dismissing said appeal, or to reinstate said cause upon the docket of said Kansas City Court of Appeals, or to compel respondents to hear and determine said cause again, as recited in the alternative writ of mandamus; that respondents have already rendered the only judgment which could have been rendered upon the subject-matter submitted for their consideration in said cause."

Two questions are presented for consideration by the pleadings: First. Is the recital in the abstract of the record proper, as to the filing of the affidavit for appeal, sufficient? Second. Is the action of the Court of...