State v. Ellison

• Decision Date: 30 March 1916
• Docket Number: No. 18744.,18744.
• Citation: 267 Mo. 321,184 S.W. 963
• Parties: STATE ex rel. LOGAN v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

184 S.W. 963

267 Mo. 321

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

No. 18744.

Supreme Court of Missouri.

March 30, 1916.

In Banc. Original proceedings for mandamus by the State, on relation of W. G. Logan, against James Ellison and others, as Judges of the Kansas City Court of Appeals. On demurrer to return by respondents. Peremptory writ issued.

This is an original proceeding by mandamus brought in this court to compel the respondents, the judges of the Kansas City Court of Appeals, to set aside an order and judgment of reversal by them rendered, at the October term, 1914, thereof, on the 5th day of said month, in a cause then pending in said court, wherein the Kansas City Coal & Material Company was appellant and W. G. Logan, the relator herein, was the respondent, to reinstate a former judgment of affirmance rendered therein by said court at the October term, 1913, thereof, and on the 5th day of January, 1914; and to issue the mandate of said court upon the last-mentioned judgment.

In response to the alternative writ, the respondents made their return, which in substance discloses these facts: That on January 5, 1914, during the October term, 1913, of said court, a judgment of affirmance was by said court rendered in said cause. That on January 15, 1914, during the same term of said court, the appellants filed in said cause a motion for a rehearing. That on February 28, 1914, during the same term of court, said motion was overruled. On the last-named date, that being the last day of the October term, 1913, of said court, the court made a general order to the effect "that all parties be given ten days to file motions in cases ruled on this day," and then finally adjourned the October term, 1913, to court in course. At the March term, 1914, of said court, and on the 2d day of said month, the appellant in the original cause filed a motion to have the cause certified to the Supreme Court, and on the 11th of the same month the appellants filed in said cause a supplemental motion to have the same certified to this court, and also a motion to set aside the order overruling the motion for a rehearing; that on April 15, 1914, during the same term, the motions to certify the cause to this court were overruled, and an order for a rehearing was granted. On June 1, 1914, during the same term, the cause was argued and submitted, and on July 6, 1914, said term of court was adjourned to court in course. On October 15, 1914, at the October term of said court, a judgment was by said court rendered reversing the judgment of the circuit court and remanding the cause, and at the same time it made an order certifying the cause to this court, of its own motion.

The order of February 28, 1914, made by the court, continuing all motions and other matters pending in said court until the March term, was as follows:

"Now, the court doth order that all motions and other matters pending be continued until the next March term of this court, and the court doth further order that all parties be given ten days to file motions in cases ruled on at this date."

The respondents base their right to set aside the judgment of amrmance in the original case and to reverse, remand, and certify said cause to this court upon the ground stated in their return, viz.:

"That in and by the order aforesaid, entered in said court on the 28th day of February, 1914, and in and by the filing of said motion by the said company to transfer said cause to the Supreme Court, filed on the 2d day of March, 1914, and in and by the said supplemental motion and motion to set aside the order overruling the motion for rehearing filed in said cause on the 11th day of March, 1914, and by each of said order and said motions the jurisdiction of the said Kansas City Court of Appeals, and the judges thereof, was retained in said cause in and to the said March, 1914, term of the said Kansas City Court of Appeals."

As a further defense, respondents also make the following statement in their amended return:

"Respondents further say that they, as judges of the Kansas City Court of Appeals, and the said Kansas City Court of Appeals, have no jurisdiction in this cause, because it has been certified to the Supreme Court of the state of Missouri, under the provisions of section 6 of the Amendment of 1884 to article 6 of the Constitution of the state of Missouri, as will appear from the record entry of judgment of the said Kansas City Court of Appeals, entered on the said 5th day of October, 1914, and as will appear from the copy of the opinion of this court, hereto attached and made a part hereof."

To this return counsel for relators filed a demurrer.

John I. Williamson, of Kansas City, for relator. Morrison, Nugent & Wylder, of Kansas City, for respondents.

WOODSON, C. J. (after stating the facts as above).

I. There are but two legal propositions presented by this record for determination, and the first is: Did the Court of Appeals, under the order of February 28, 1914, before mentioned, have jurisdiction at the October term, 1914, thereof, to set aside the judgment of affirmance rendered by it at the October term, 1913, when no motion of any kind was pending in said cause?

Counsel for the relator contends that the Court of Appeals had no such jurisdiction, while the respondents insist that it had.

There is an irreconcilable conflict between authorities in this state upon this question.

The cases of State ex rel. v. Philips, 96 Mo. 570, 10 S. W. 182, and Childs v. Railway, 117 Mo. 414, loc. cit. 428, 23 S. W. 373, squarely hold that the filing of a motion for a rehearing in an appellate court after the adjournment of the term, under an order allowing the motion to be filed in vacation, continues the cause so that the opinion filed does not become the opinion of the court until the motion is disposed of at the next term. There is this distinction between those cases and the case at bar: In those cases no motion for a rehearing had been filed at the time the order was made extending the time to the next term for parties to file such motions, while in the case at bar the motion for a rehearing had been filed and overruled at the time the order of extension was made.

Under rule 21 of this court (169 S. W. x) regarding motions for a rehearing, that fact alone would be a finality of the case, without the court of its own motion, during the same term, should for some good cause resting in the breast of the court set the judgment aside; but rule 24 of the Kansas City Court of Appeals (169 S. W. xiv), governing motions for a rehearing is not so definite and clear as is said rule of this court.

But from the view we take of this case it is not necessary for us to construe or give effect to said rule 24; it is more becoming to leave that duty with the Court of Appeals, except perhaps in a case where it might become absolutely necessary for this court to do so, in order to properly decide the case. The rule invoked by counsel for relator is firmly established in this state, as well as many others; and the two cases before cited seem to be the only cases in conflict with it. In fact, it is elementary that after a final judgment has been rendered in a cause, at one term of the court, in the absence of a statute to the contrary, with no motion or other proper step has been taken therein, to carry the cause over to the next term of court, the court possesses no jurisdiction to set aside, modify, or annul that judgment at such succeeding or any subsequent term of the court. Jeude v. Sims, 258 Mo. 26, 166 S. W. 1048.

In discussing this question, this court, in the former case, on page 39 of 258 Mo., on page 1052 of 166 S. W., used this language:

"In all cases, except those provided for by these statutes, a court has no authority to disturb its judgment after the lapse of the term. This has been so universally ruled that citations would be to become superfluous. The defendants therefore are in no position to lay hold of either of these two statutes, and the original judgment was wrongfully set aside after the lapse of the term, unless such action can be upheld upon one of the other two theories remaining to be discussed."

The same question was under consideration in the case of State ex rel. v. Reynolds, 209 Mo. 161, on page 176, 107 S. W. 487, on page 491 (15 L. R. A. [N. S.] 963, 123 Am. St. Rep. 468, 14 Ann. Cas. 198), and in disposing of it this court used this language:

"If the circuit court of St. Louis county had made in express terms an order at a subsequent term setting aside the final decree granting the injunction and ordering the receiver appointed, it would have been absolutely void and of no effect, because that court had no authority to make such order after the expiration of the term at which the decree was made. And there is nothing in the Hirzel Case, supra, which indicated anything to the contrary. State ex rel. v. Walls, 113 Mo. 42 ; Appo v. People, 20 N. Y. 531. In the former case the judge of the court which tried the case, after overruling the motion for a new trial, died, but before signing the bill of exceptions. His successor in office attempted at a subsequent term of the court to set aside the judgment and grant a new trial. In that case this court held that prohibition would lie to prevent the successor in office from setting aside the judgment previously entered for want of jurisdiction in the court to make the order. The decision was not based upon the ground that the matter involved had been adjudicated and could not on that account be again litigated, but was based squarely upon the ground that the court had no jurisdiction to make the order.

"The same proposition was involved in the Appo Case, supra, and it was there contended that, when the inferior court or tribunal has jurisdiction of the action or of the subject-matter before it, any error in the exercise of that jurisdiction can neither be corrected nor prevented by a writ of...