State v. Dickey

• Decision Date: 26 May 1921
• Docket Number: No. 22343.,No. 22344.,22343.,22344.
• Parties: STATE ex rel. DOLMAN v. DICKEY et al. (two oases).
• Court: Missouri Supreme Court

231 S.W. 582

288 Mo. 92

STATE ex rel. DOLMAN v. DICKEY et al. (two oases).

No. 22343.

No. 22344.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, Buchanan County; Thomas b. Allen, Judge.

Petition by the State, on the relation of John E. Dolman, against C. E. Dickey and others for writ of mandamus. From a judgment for relator, respondents appeal, and relator also appealed. Affirmed.

On November 8, 1916, relator filed, in the circuit court of Buchanan county, Mo., a petition for mandamus to compel respondents to issue and deliver to him certain tax bills, to pay for the construction of pavement on a street in St. Joseph, Mo., a city of the first class. The relator is the assignee of the Standard Construction Company, the contractor in the performance of the work. Respondents made their return, and the circuit court aforesaid, after hearing the evidence, found the issues in favor of relator and granted a peremptory writ. Said defendants, in due time, appealed the cause to this court. Upon a hearing of the case, we reversed it outright, as shown in the opinion of Commissioner White, reported in 280 Mo. 536, 219 S. W. at page 363 and following. Relator filed in this court a motion for rehearing. In support of said motion, this court was requested to hold that the contract mentioned in petition was severable, and that the work on the sidewalk and curbing mentioned therein was substantially complied with, etc. Thereupon, at the instance of relator (280 Mo. 536, 219 S. W. 368), the opinion of Commissioner White was modified, and the cause remanded, in order that the trial court might ascertain whether the construction of the curbing and sidewalk was in accordance with said contract, and could be separated from the paving, in determining the price to be paid for same, etc. The motion for rehearing, after said modification, was thereupon overruled. Upon the filing of the opinion and mandate of this court in the circuit court aforesaid, the latter proceeded to dispose of the case upon the petition and return aforesaid under the directions of this court for the purposes aforesaid.

It appears from defendants' bill of exceptions herein that relator, in the retrial of the case, offered in evidence the bill of exceptions and record in the case made up at the former trial. Other evidence was offered by relator in support of his contention.

On March 29, 1920, the circuit court entered the following judgment after said retrial:

"Now on this day comes the plaintiff by John E. Dolman, its attorney, and also come the defendants, by Charles W. Meyer, their attorney, and the mandate and opinion of the Supreme Court in said cause, remanding the same to this court for further proceedings with reference to the sidewalk, curb and driveways, having been filed and the said cause in accordance with said opinion, now coming on to be heard and the record upon the former trial of this cause, the bill of exceptions and the original contract having been introduced in evidence and the court having heard the arguments of counsel and being fully advised in the premises, finds that the sidewalks, curbing and driveways can be separated from the paving of the roadway and that the prices therefor are different from the price charged for said driveway, to wit: For all curbing taken up and reset per linear foot, fifteen cents. For new (artificial concrete stone) curbing furnished and set per linear foot, forty-four cents. For (artificial concrete stone) sidewalk per square foot, fourteen cents and for concrete driveways per square foot, twenty cents.

"And the court further finds that all of said sidewalks, curbing and driveways were constructed in accordance with the contract, and that plaintiff is entitled to have tax bills issued therefor according to the terms of said contract, but that under said decision of the Supreme Court, plaintiff is not entitled to have tax bills issued in payment for the paving of the roadway provided for in said contract.

"It is therefore ordered, considered and adjudged that a peremptory writ of mandamus issue against said defendants and against the board of public works of the city of St. Joseph as now constituted and the city engineer of said city, commanding them to issue and deliver tax bills to said John E. Dolman, relator herein, for all sidewalks, curbing and driveways constructed under said contract, in accordance with the prices contained therein and that the city engineer certify, authenticate and sign the same to the end that the same may be established as a lien against the several pieces and parcels of land liable for such improvement.

"That plaintiff have and recover interests on said tax bills at the rate of 8 per cent. per annum from the date of his demand therefor, to wit, January 27, 1915, and that said relator have and recover of said defendants his costs in this behalf expended and hereof let execution issue."

On April 2, 1920, defendants filed a motion for a new trial, which was overruled on April 14, 1920. Defendants, in due time and in a proper manner, appealed to this court.

Relator filed no motion for a new trial, nor did he file any motion in arrest of judgment. He filed an affidavit for appeal on April 24, 1920, and took leave to file a bill of exceptions during the May term, 1920, of said court.

Relator's affidavit for appeal, which was sustained, reads as follows:

                "Comes now the relator, John E. Dolman, in
                the above-entitled cause, and moves the court
                for an appeal to the Supreme Court of the
                State of Missouri. John E. Dolman, being first
                duly sworn, on his oath states that he is the
                relator in the above-entitled cause and that
                this appeal is not made for vexation or delay
                but because he believes himself aggrieved and
                injured by the judgment of the court in this
                cause.                     J. E. Dolman
                

"Subscribed and sworn to before me this 16th day of April, 1920," etc.

The respective appeals will be disposed of separately in the opinion.

A. F. Lindsay, City Counselor, and C. W. Meyer, Asst. City Counselor, both of St. Joseph, for appellants.

John E. Dolman, of St. Joseph, for respondent.

RAILEY, C. (after stating the facts as above).

I. Relator insists that on the record aforesaid, he is entitled to have this court reconsider the law of the case as declared in the opinion of Judge White. It is tree that the Supreme Court in a few cases, when properly presented, has reconsidered its former ruling on the second appeal, but such practice is an exception to the general rule, and is not to be encouraged. According to our conception of the law, relator is in no position to ask at our hands a reconsideration of the former ruling, denying the writ of mandamus, for he is here without any record upon which that matter can be considered.

We remanded the original case, at the instance and request of relator, in order to give him a chance to recover tax bills for the curbing and sidewalk, if the trial court should find that the contract was severable, etc. The jurisdiction of the circuit court, upon a retrial of the case, was limited solely to the above issue. In granting relator's request for a retrial of the above matter, it was upon the theory that the petition and writ were to be considered as amended, so as to deal alone with the above issue. Both court and counsel proceeded in the second trial upon this theory, as shown by the proceedings and judgment rendered. The record proper, then, in the second trial, consisted of the petition and writ as amended, the return of defendants, and the judgment heretofore set out. As shown by the record, relator offered testimony upon the retrial of the case, and, after judgment was rendered in his favor, upon the issues thus presented, he filed no motion for a new trial or in arrest of judgment, but simply filed the affidavit for appeal heretofore mentioned and has sought to bring the case here without the evidence, or without any matters of exception, which may have occurred during the progress of the trial. It has long since become elementary law in this state that in the absence of a motion for a new trial, and in arrest of judgment, nothing but the record proper can be considered by the appellate court. State v. Griffin, 98 Mo. loc. cit. 874, 875, 12 S. W. 358; State v. Wray, 124 Mo. loc. cit. 542, 543, 27 S. W. 1100; State v. Handley, 144 Mo. loc. cit. 118, 119, 45 S. W. 1088; State v. Revely, 145 Mo. 630, 47 S. W. 787; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Stark v. Zehnder, 204 Mo. loc. cit. 449, 102 S. W. 992; Gilchrist v. Bryant, 213 Mo. 442, 111 S. W. 1128; Groves v. Terry, 219 Mo. 595, 117 S. W. 1167; State ex rel. v. Adkins, 221 Mo. loc. cit. 120, 119 S. W. 1091; Hays v. Foos, 223 Mo. 421, 122 S. W. 1038; Betzler & Clark v. James, 227 Mo. 375, 123 S. W. 1007; St. Louis v. Henning, 236 Mo. 44, 138 S. W. 5; Blanchard v. Dorman, 236 Mo. 416, 411, 130 S. W. 305; Realty Co. v. Brewing Co., 247 Mo. 20, 152...