State v. Kansas City Court of Appeals

• Decision Date: 25 May 1891
• Parties: STATE ex rel. SCOTT v. KANSAS CITY COURT OF APPEALS.
• Court: Missouri Supreme Court

16 S.W. 415

104 Mo. 419

STATE ex rel. SCOTT v. KANSAS CITY COURT OF APPEALS.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

WRIT OF PROHIBITION — JURISDICTION OF SUPREME COURT — APPEAL IN DIVORCE.

1. The supreme court of Missouri, having no appellate jurisdiction over the Kansas City court of appeals save in cases certified under amendment to Const. 1884, § 6, the writ of prohibition will not issue to correct an error of the court of appeals in overruling a motion to dismiss a writ of error on the ground that it had not been sued out in the proper time.

2. Under Rev. St. Mo. 1889, § 4510, providing that in divorce cases no final judgment shall be reversed, amended, or modified unless the writ of error shall have been issued within 60 days after the judgment was rendered, the time runs from the overruling of the motion for a new trial, though the judgment had been formally entered before that.

Application for writ of prohibition.

The facts out of which this case arises are, in brief, the following: On January 18, 1890, the petitioner obtained a decree for divorce from Barbara Scott in the circuit court of Cass county, duly entered of record on that day. On January 22, 1890, she filed in that court her motion for a new trial, which was overruled January 31, 1890. On March 22, 1890, (more than 60 days after the judgment was entered of record, but less than 60 days from the time the motion for a new trial was disposed of,) Barbara Scott sued out her writ of error from the Kansas City court of appeals to review the decree referred to. The petitioner filed a motion in that court to dismiss the writ of error for the reasons that it was not sued out within 60 days after the rendition of the original judgment, and that the court had no jurisdiction or authority to reverse, annul, or modify the said judgment. That motion was overruled by that court April 27, 1891, and the said cause was ordered and adjudged to be reversed and remanded, after hearing in due course. The petitioner then moved the court of appeals to vacate its order overruling his motion to dismiss on substantially the same grounds that had been assigned in that motion. The motion to vacate is yet pending in that court. The other facts appear in the opinion.

Noah M. Givan, for relator. Whitsett & Jarrott, R. T. Railey, and Jas. T. Burney, for respondents.

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

This is an application for a rule in prohibition against the judges of the Kansas City court of appeals to stay their exercise of jurisdiction over a cause in that court. The defendants resist the application, and by demurrer claim that no sufficient grounds appear for granting it. Passing (without deciding) the question whether the application is not premature and going directly to the merits, we find that the court of appeals has undoubted appellate jurisdiction of the subject-matter of the action pending there, by which is meant that that court, upon appeal or writ of error, has jurisdiction of causes of the general class to which that action belongs. (Posthlewaite v. Ghiselin, 1888, 97 Mo. 420, 10 S. W. Rep. 482,) namely, of proceedings for divorce. This being so, the question whether the writ of error (necessary to bring its jurisdiction into play in that particular case) was issued from that court in the time, manner, or form allowed by law was one peculiarly for it to determine. In the circumstances disclosed in this instance we do not regard its ruling thereon as presenting any proper matter for our review in the mode now attempted.

2. But, further than that, the statute on which the petitioner now relies declares that "no final judgment or order rendered in cases arising under this chapter shall be reversed, annulled, or modified in the supreme or any other court, by appeal...