State v. Ellison

• Decision Date: 01 April 1921
• Citation: 287 Mo. 654,230 S.W. 970
• Parties: STATE ex. rel. BERKSHIRE et al. v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

230 S.W. 970

287 Mo. 654

STATE ex. rel. BERKSHIRE et al. v. ELLISON et al., Judges.

Supreme Court of Missouri, in Banc.

April 1, 1921.

Rehearing Denied April 30, 1921.

Certiorari by the State, on relation of John H. Berkshire and another, copartners as the Berkshire Lumber Company against Hon. James Ellison and others, Judges of the Kansas City Court of Appeals. Writ quashed.

Edgar C. Ellis, Hale H. Cook, Roy K. Dietrich, and Ellis, Cook, & Dietrich, all of Kansas City, for relators.

Scarritt, Jones, Seddon & North, of Kansas City, for respondents.

GRAVES, J.

Certiorari to the Kansas City Court of Appeals. The proceeding nisi out of which the present proceeding grows was that of a copartnership under the name of Berkshire Lumber Company against Ima H. Holcker, Otto L. Holcker, and others. It was an action under the equitable Mechanic's Lien Law (Acts of 1911, p. 314). The Berkshire Lumber Company, being desirous of enforcing a lien against property in Kansas City which belonged to Mrs. Ima H. Holcker, brought action against her and her husband (Otto) and all other lien claimants. In the trial court the verdict of the jury favored Mrs. Holcker, in that it found that her husband was not her agent in putting the improvements upon the property. The law requires, under given conditions, the submission of issues to the jury and bound the trial court by their verdict on such issues.

The circuit court granted the lien claimants a new trial, and Mrs. Holcker took an appeal from said order to the Kansas City Court of Appeals. In that court there were two hearings. January 17, 1917, there was an opinion by Judge Ellison reversing and remanding the cause with directions to the circuit court "to reinstate the verdict and enter judgment against the liens."

The case was then held up in the Kansas City Court of Appeals to await the decision of this court in Boeckeler Lumber Co. v. Wahlbrink, which had been certified to this court by the St. Louis Court of Appeals. 191 Mo. App. 334, 177 S. W. 741.

After our ruling in that case, the instant case was set down for reargument in the Kansas City Court of Appeals. June 17, 1919, the Kansas City Court of Appeals rendered, through Trimble, J., a second opinion in the lower court by which the order was again reversed, with directions to reinstate the verdict of the jury and enter judgment against the lien claimants. November 10, 1919, the motion for rehearing was overruled. November 20, 1919, a motion was filed by some of the lien claimants to withhold mandate, but this record does not show the action of the Kansas City Court of Appeals thereon. Relators here were not parties to this application. The application for our writ of certiorari was filed here on August 6, 1920.

Counsel for the respondents here have filed in this court a certified copy of a judgment in the circuit court of Jackson county entered on the 30th day of December, 1919, by which it appears that on such date said circuit court entered up a judgment in accordance with the directions of the Kansas City Court of Appeals. It is charged in respondents' brief that the term has elapsed, and that judgment was not appealed from by any of the lien claimants. We judicially know that the term had elapsed, and further that no appeal can be taken from a judgment in a circuit court which has been entered by the express direction of an appellate court. This states the case for the single point, which we deem settles what our judgment here should be, on the record before us.

I. The writ of certiorari, such as we have in this case, has one particular function, and that is to prevent contrariety of opinions upon question of law and equity in this state. Of course, the party who applies for our writ as against the judgment of a Court of Appeals has the further interest of having an adverse judgment quashed. So as to the applicant for our writ, if he is successful in the case, a double purpose has been subserved: (1) Contrariety of opinions has been thwarted; and (2) the adverse judgment as to him has been quashed. But, whatever the result of our superintending control of the appellate courts may be by our writ of certiorari, it is with this court a purely discretionary writ. The great number of applications refused, and the few granted, by this court, bespeak the discretionary character of this writ in this court The books bespeak the further fact that, when upon a full hearing we conclude that our writ was improvidently granted, we have always promptly quashed the same. So we do not seek further authority for the fact that with this court this character of a writ of certiorari is purely discretionary. Our whole course of action so shows.

II. In this case, however, we have a new situation urged for the quashing of our writ. It is urged that the application was not timely made: That relators were guilty of lathes in not acting sooner. We think that there is substance in this contention. The application was made more than a year after the opinion of the Court of Appeals was written and handed down, and more than nine months after the court had overruled the motion for rehearing. Of course, the opinion was not a finality until after the motion for rehearing was overruled. Pending such motion the whole matter was in the breast of the court, but when it was overruled the opinion was a finality, so far as the Court of Appeals was concerned, unless the court, at the same term, of its own motion, changed its opinion and judgment. Such was not done in this case. The relator here waited nine months from the time the motion for rehearing was overruled. Not only so, but it waited until after the law directs that the Court of Appeals' mandate should go down, and until after such mandate had in fact gone down, and the circuit, acting thereon, entered up the judgment directed by the Court of Appeals; in other words, in this particular case the judgment of the Court of Appeals had been fully executed, some seven months before there was an application here to have that judgment reviewed and quashed through our...