State v. Ellison

• Citation: 181 S.W. 78
• Decision Date: 08 December 1915
• Docket Number: No. 18723.,18723.
• Parties: STATE ex rel. DELANO et al. v. ELLISON et al., Judges.
• Court: United States State Supreme Court of Missouri

181 S.W. 78

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

No. 18723.

Supreme Court of Missouri.

December 8, 1915.

Rehearing Denied December 22, 1915.

In Banc. Action by Green Barrett against Frederick A. Delano and others, receivers of the Wabash Railroad Company. Judgment for plaintiff was affirmed by the Kansas City Court of Appeals and defendants bring certiorari. Preliminary writ quashed.

This is an original proceeding by certiorari to quash a judgment entered by respondents, judges of the Kansas City Court of Appeals, affirming a judgment of the circuit court of Boone county, Mo., in favor of Green Barrett for $3,500 against the receivers of the Wabash Railroad Company. The ground upon which our writ is sought is that the Court of Appeals failed to follow the last previous rulings of this court in determining certain involved and decided questions of law. Such facts as are essential to a proper determination of the questions presented will be stated in the opinion.

It is urged by relator: (1) That in holding plaintiff was not guilty of contributory negligence as a matter of law the Court of Appeals failed to follow the decisions of this court in the cases of Hayden v. M., K. & T. Ry., 124 Mo. 566, 28 S. W. 74; Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362, 30 S. W. 339; Lane v. Mo. Pac. Ry. Co., 132 Mo. 4, 33 S. W. 645, 1128; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 673, 36 S. W. 220; Sanguinette v. Railway Co., 196 Mo. 466, 95 S. W. 386; Stotler v. Railway Co., 204 Mo. 619, 103 S. W. 1; Burge v. Railroad Co., 244 Mo. 76, 148 S. W. 925 — which it is said hold that, if the physical facts show the approaching train could have been seen by the traveler by looking from a place of safety, no issue of fact is raised by the statements of plaintiff that he did look, but failed to see the train. (2) That in holding, where there is a debatable issue on the allegations of negligence alleged in the petition, it is not error to direct the jury to find for the plaintiff, if they find he was not guilty of contributory negligence, the court failed to follow the decisions of this court in the following cases: Applegate v. Railroad Co., 252 Mo. 173, 158 S. W. 376; Enloe v. Car & Foundry Co., 240 Mo. 443, 144 S. W. 852; Gardner v. Metropolitan St. Ry. Co., 223 Mo. 389, 122 S. W. 1068, 18 Ann. Cas. 1166; Payne v. Railway Co., 129 Mo. 405, 31 S. W. 885; Spillane v. Railway Co., 111 Mo. 555, 20 S. W. 293; Fitzgerald v. Hayward, 50 Mo. 516; Goetz v. Railway Co., 50 Mo. 472; Clark v. Hammerle, 27 Mo. 55. (3) That the Court of Appeals failed to follow the decisions of this court in the cases of Abbott v. Railroad Co., 83 Mo. 271, 53 Am. Rep. 581, Allen v. Transit Co., 183 Mo. 411, 81 S. W. 1142, and Beave v. Transit Co., 212 Mo. 331, 111 S. W. 52, when it held that where specific acts of negligence are alleged in the petition it was not error to instruct the jury that they may find for the plaintiff if they find and believe that the defendant was guilty of any act of negligence.

James L. Minnis, of St. Louis, and McBaine & Clark, of Columbia, for relators. J. L. Stephens and H. A. Collier, both of Columbia, for respondents.

REVELLE, J. (after stating the facts as above).

I. Before we can pass upon all of relators' assignments, we must first determine whether they are legitimate subjects for our consideration, and this depends upon the extent and limitation of our power of review of the decisions and proceedings of the various Courts of Appeals. Whatever may have been the conflict of authority, heretofore, upon the question whether upon certiorari this court can inquire beyond the question of the jurisdiction of such tribunals, it must now be regarded as settled in this state that it is our duty to see that the decisions of such courts are in substantial harmony with the controlling decisions of this court. State ex rel. v. Robertson, 264 Mo. 661, 175 S. W. 610; State ex rel. v. Reynolds, 257 Mo. 19, 165 S. W. 729; State ex rel. v. Broaddus, 238 Mo. 189, 142 S. W. 340; State ex rel. v. Broaddus, 245 Mo. 123, 149 S. W 473, Ann. Cas. 1914A, 823; and State ex rel. v. Ellison, 256 Mo. 644, 165 S. W. 369. The settlement of that question in that wise, however, has not put us "at ease, neither are we quiet; neither have we rest, but trouble cometh" in the form of this inquiry: At what can we look, and by what must we be governed in determining whether the Courts of Appeals have acted within the bounds of their jurisdiction, or in contravention of the decisions of this court? We all agree that for such purposes we can have recourse only to the record of such courts, but of what does such record consist? Is it merely what we designate the "record proper," or does it include such other things as the Constitution and statutes declare to be the record? It has always been my understanding that the office of certiorari is to "bring the record of the proceedings of an inferior court or tribunal before a superior court," in order that it may "determine whether the inferior court has acted legally and within its jurisdiction." State ex rel. v. Edwards, 104 Mo. loc. cit. 126, 16 S. W. 118; State ex rel. v. Wiethaupt, 254 Mo. loc. cit. 329, 162 S. W. 163. And by the term "record," I have understood, is meant such record as the law authorizes and recognizes in the case; and by the term "proceedings," unless qualified by the subject to which applied, is meant the whole of the subject, or, more accurately speaking, the matters occurring in its progress judicially. Originally the chief function of the common-law writ was to bring to the superior court cases from which appeals or writs of error did not lie. Birdsall v. Phillips, 17 Wend. (N. Y.) 464. In such cases no other adequate remedy existed by which erroneous determinations could be reviewed or excess of jurisdiction restrained. In most of such cases the common law made no provision for preserving as a part of the record the evidence and things judicially occurring during the trial, and for this reason nothing but what we call the record proper was reviewable, and from this has come the repeated and misleading statement that at common law the writ brought up only the record proper. The law not providing that the whole proceedings were matters of record, and there being no appeal for the purpose of which such proceedings could be made a part of the record, the review was accordingly and necessarily limited. In cases, however, at common law as lawful provision was made for the preservation of the evidence and proceedings as parts of the record, the same were reviewable under the writ. Los Angeles v. Young, 118 Cal. loc. cit. 298, 50 Pac. 534, 62 Am. St. Rep. 234. In using the writ to review the acts of county judges (State ex rel. v. Wiethaupt, 254 Mo. 319, 162 S. W. 163), and of executive or ministerial officers, this court has necessarily limited its examination to the record proper, because, as said in State ex rel. v. Wells, 210 Mo. loc. cit. 621, 109 S. W. 764:

"There is no provision of the statute by which it is provided that the evidence taken before the mayor in cases of this character may be preserved and made a part of the record, and, being no part of the record, it could not be reached by a writ of that character in the case at bar."

In the case of Ward v. Board of Equalization, 135 Mo. 309, 36 S. W. 648, this court refused to consider the evidence, because, as said by the court, "No provision is made by law, either common or statutory, for any such procedure before such a tribunal." And for that reason the court held that the evidence taken was not a part of the record. Likewise with proceedings in the circuit court where no bill of exceptions has been filed. State ex rel. v. Goodrich, 257 Mo. 40, 165 S. W. 707. In cases of the latter ilk the record proper is the sole and whole record of the proceedings, matters occurring during the trial not becoming any part of the record until the bill of exceptions is filed.

The cases heretofore decided by this court loosely and unwarrantedly stating that no matters, save the record proper, are legitimate subjects of review, have been cases in which such record was the sole and complete record; but in what manner, and by what process of reasoning, may I ask, can the doctrine applied in such cases be held as authority for the proposition, that in cases of the kind under consideration, and where the lawful record is entirely different and more extensive, we are limited to the record proper? The record proper, as defined by this court, consists of the pleadings, summons, return, verdict, judgment and record entries pertaining to the appeal; but this is only a part of the record for which lawful provisions is made in cases of appeal or writ of error. The statutes specifically prescribe that the bill of exceptions, when duly attested and filed, shall become a part of the record in the case, and the stereotyped and ofttime approved certificate attached by the trial judge to the bill recites that the same is a part of the record. The statute also inhibits all appellate courts from considering any matters of exception, unless and until the same have been made a part of the record, and to say that the matters embodied in the bill of exceptions or transcript are not a part of the record of the court determining the appeal would be equivalent to holding that such courts were unlawfully entertaining matters not properly before them.

In view of the statute expressly declaring the bill of exceptions or transcript to be a part of the record, we must find something somewhere in the law which justifies us in singling out certain parts of the record and declaring only them to be the whole record. In the absence of such a provision, would we not be just as warranted in holding that only the bill of exceptions constitute the record, as we would in holding that only the record proper is the record? The constituent parts of the record are defined for us,...