State v. Broaddus

Decision Date27 February 1908
Citation210 Mo. 1,108 S.W. 544
CourtMissouri Supreme Court
PartiesSTATE ex rel. TITLE GUARANTY & TRUST CO. v. BROADDUS et al., Judges.

Woodson, J., dissenting. Graves, J., dissenting in part.

In Banc. Mandamus by the state on the relation of the Title Guaranty & Trust Company of Scranton, Pa., against Elbridge J. Broaddus, and others, judges of the Kansas City Court of Appeals, to require the setting aside of an order dismissing an appeal by defendant in the case of the Farmers' State Bank of South Greenfield against the relator, to reinstate the cause, and proceed to hear and determine the same. Peremptory writ granted.

Thos. H. Sprinkle and Edward J. O'Brien, for relator. Edw. J. White and Edgar P. Mann, for respondents.

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, Pa., 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, Mo., 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, whereupon the court made an order continuing the cause to said October term. On October 2, 1907, the attorneys for respondent in said cause filed a motion to dismiss the appeal, as follows: "Comes now the respondent in the above-entitled cause, and moves the court to dismiss the appeal of appellant in this court, as said grounds for said motion respondent respectfully presents to the court: That appellant's affidavit for an appeal filed in this court, on which the appeal of appellant was allowed, is, as shown in the additional abstract of the record herewith filed, in the following form: [reciting said affidavit]. That said affidavit for appeal is insufficient to confer jurisdiction of this court over the subject-matter involved in the said cause of action, and this court is therefore wholly without jurisdiction of said appeal." Thereafter, on October 7, 1907, the court sustained said motion, and made the following order dismissing the appeal: "Now, at this day, comes the said respondent by attorney, and, upon its motion, it is considered and adjudged by the court that the appeal herein be and the same is hereby dismissed, and that the said respondent recover against the said appellant costs and charges herein expended, and have therefor execution." Relator filed its motion for a rehearing on the following grounds: "(1) Surprise; (2) estoppel; (3) that the error ascribed to the affidavit for appeal is clerical only; (4) that the error itself is that of the clerk of the court below in printing the word `himself' without any warrant in reason, and misleading the latter thereby; (5) that in the interest of common justice the appellant should not be amerced in a large amount, without any fault on its part, and denied its day in court." The motion further showed that relator had made efforts prior to October 20, 1907, to have the affidavit for appeal amended in the trial court, but without success. On November 4, 1907, the Court of Appeals overruled said motion for rehearing, and refused to take jurisdiction of the appeal. Thereafter, on the 16th day of November, 1907, relator sued out from this court a preliminary writ of mandamus directed to the respondents, Elbridge J. Broaddus, James Ellison, and James M. Johnson, Judges of the Kansas City Court of Appeals, commanding them, immediately upon receipt of said writ, to proceed to hear the appeal in the cause wherein the Farmers' State Bank of South Greenfield is respondent and the Title Guaranty & Trust Company of Scranton, Pa., is appellant, being case No. 8,008 of said Court of Appeals, as docketed for the October term, 1907, thereof, according to the true intent and meaning of said appeal so taken by the relator herein, or that they appear before our Supreme Court in banc, on or before the 2d day of December, 1907, and show cause for their refusal so to do. Respondent's return, in substance, stated that, prior to the issuance of said writ, respondents had rendered a decision based upon a full and complete consideration of the record in the cause before them on appeal, entitled Farmers' State Bank of South Greenfield against the relator; that, acting in their judicial capacity in the premises, respondents had complete power and authority in determining the question of jurisdiction, or the right of the relator to be heard upon its said appeal before them; that the Supreme Court is without authority of law, by extraordinary writ or rule, to compel the respondents to proceed to afford relator a hearing upon the merits of its appeal in said appealed cause; that respondents rendered the only judgment which could have been rendered upon the subject-matter submitted for their consideration in said appealed cause. Relator's replication to respondents' return specifically denied the said statements and propositions of said return to the alternative writ.

It is contended by relator that if the order dismissing its appeal for want of jurisdiction by the Kansas City Court of Appeals, because of the error in the affidavit for the appeal before the Dade county circuit court, was erroneous, then mandamus will lie. On the other hand, the respondents maintain that 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, as was done by said Court of Appeals in the case of the Farmers' State Bank of South Greenfield against the Title Guaranty & Trust Company, of Scranton, Pa. While there are many authorities cited by respondents which sustain their contention, it was held by this court in the case of State ex rel. v. Smith, 172 Mo. 446, 72 S. W. 692, that the Court of Appeals having improvidently dismissed a case appealed to it, and of which it had jurisdiction, the Supreme Court would compel it by mandamus to exercise its jurisdiction to hear and determine the case. In that case the appeal was dismissed because of an imperfect abstract filed by the appellant therein. A parallel case was that of State ex rel. v. Smith, 172 Mo. 618, 72 S. W. 692, in which the former case was followed and approved. These cases are based upon the theory that, by dismissing the appeal, the Court of Appeals simply refused to exercise jurisdiction of an appeal of which it clearly had jurisdiction. In the case under consideration quite a different question is presented. The question here is whether the Kansas City Court of Appeals had jurisdiction of the appeal. This is denied in the return to the original writ, in which it is affirmed that said court had jurisdiction of the appeal at the time of its dismissal.

It is argued by relator that the allowing of the appeal by the circuit court in session during the term at which the judgment sought to be appealed from was rendered constituted a valid appeal, of which the appellee was bound to take notice, because, as contended, the order allowing the appeal had the effect of the transferring the jurisdiction of the case to the...

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