State v. Nixon

• Decision Date: 17 December 1910
• Parties: STATE ex rel. FURSTENFELD v. NIXON et al., Judges.
• Court: Missouri Supreme Court

133 S.W. 340

STATE ex rel. FURSTENFELD v. NIXON et al., Judges.

Supreme Court of Missouri.

December 17, 1910.

Rehearing Denied December 31, 1910.

1. COURTS (§ 483) — APPELLATE COURTS— TRANSFER OF CAUSE—STATUTE—VALIDITY.

Const. 1875, art. 6, § 12, and sections 1, 2, and 3 of the amendment to that article of 1884 (Ann. St. 1906, p. 243), establishes courts of appeal in St. Louis and Kansas City, and delimits their territorial jurisdiction, the two courts covering the whole state, and also authorized the Legislature to establish a third court of appeal and define its territorial jurisdiction. The additional court was established at Springfield and its district defined by Laws 1909, p. 393. Held that, the territorial limits of jurisdiction of the three courts having been established by the Constitution or under authority therein granted, the Legislature had no power to enact Laws 1909, p. 396 (Rev. St. 1909, § 3939), authorizing the several courts of appeal to transfer cases arising in their own districts to the court of another district for determination, in order to equalize business before them.

2. APPEAL AND ERROR (§ 21)—JURISDICTION —CONSENT OF PARTIES.

A judgment was obtained against the relator and others for $583.17 in the circuit court in the city of St. Louis, from which relator appealed, and the appeal was argued and submitted for judgment in the St. Louis Court of Appeals. While yet undetermined, that court made an order transferring the cause to the Springfield Court of Appeals, but no jurisdiction was vested in that court by the transfer, the act under which the transfer was made being unconstitutional. After the transfer, the record was sent to that court and entered in its docket, and relator's counsel forwarded to the clerk of that court copies of the printed record and their briefs, and when the cause came on to be heard, none of the parties appearing, the court took the case as submitted on the briefs and affirmed the judgment of the circuit court. Held that, as the subject-matter in controversy was within the appellate jurisdiction of the Springfield Court of Appeals, its judgment in the case was valid; the court having jurisdiction by consent of parties.

3. COURTS (§ 2)—"JURISDICTION" IN GENERAL.

Jurisdiction is of two kinds, one of the subject, the other of the parties, and both must exist in order to authorize the court to try and determine the cause.

4. COURTS (§ 23) — JURISDICTION — CONSENT OF PARTIES.

Unless the law gives the court jurisdiction of the subject-matter, jurisdiction cannot be acquired by the consent of the parties, but, if the law gives jurisdiction of the subject-matter, the court may acquire jurisdiction of the parties by their consent.

5. COURTS (§ 231)—COURTS OF APPELLATE JURISDICTION—MISSOURI.

The courts of appeals are courts of limited appellate jurisdiction, although within their prescribed limits their authority is as complete as that of the court of general jurisdiction.

6. APPEAL AND ERROR (§ 21)—JURISDICTION —JURISDICTION OF SUBJECT-MATTER—CONSENT OF PARTIES.

Parties cannot, by consent, give an appellate court jurisdiction of the subject-matter, and where title to real estate is involved, if the judgment appealed from depends, for its validity, on a statute which appellant is contending, is unconstitutional, or, if the amount in dispute is over $7,500, the Court of Appeals has no jurisdiction, and the consent will not confer it.

Graves and Gantt, JJ., dissenting in part.

Petition by the State, on the relation of Valentine Furstenfeld, against J. P. Nixon and others, Judges of the Springfield Court of Appeals, for mandamus, heard on return to an alternative writ of mandamus. Alternative writ quashed, and permanent writ denied.

Geo. S. Grover and Silver & Dumm, for relator. Dawson & Garvin, for respondents.

VALLIANT, J.

On the petition of relator, an alternative writ of mandamus issued to the judges of the Springfield Court of Appeals directing them to transfer to this court the record in the cause of the Willis Coal Mining Company against Christian Furstenfeld and others, or to show cause why they should not do so. By the return of respondents, it appears: That the cause mentioned was one in which a judgment for $583.17 had been rendered against the defendants in that suit by the circuit court of the city of St. Louis, and that an appeal had been taken by one of the defendants to the St. Louis Court of Appeals, where on April 8, 1908, the cause was argued and submitted for judgment. That December 28, 1909, while the cause was still pending and undetermined in the St. Louis Court of Appeals, that court made an order transferring it to the Springfield Court of Appeals, and, in obedience to that order, the record was sent to the last-named court and entered on its docket January 20, 1910. The appellant in that case, the relator here, filed a motion in that court to return the cause to the St. Louis Court of Appeals. The grounds of the motion substantially were that under the Constitution and laws the Springfield Court of Appeals had no jurisdiction of the cause, but the St. Louis court alone had jurisdiction of it: That the act of the General Assembly of June 12, 1909 (Laws 1909, p. 393), under which the St. Louis court undertook to transfer the cause, was unconstitutional and void; further, the transfer was unlawful because the cause had already been argued and submitted to the St. Louis court before the order of transference was made. The motion was overruled, after which counsel for appellant forwarded to the clerk of the Springfield court copies of the printed record and their briefs which had previously been filed in the St. Louis court and when the cause came on for hearing in its turn on the docket of the Springfield court, no one appearing for oral argument, it was taken by that court as submitted on briefs, and in due time a judgment was rendered affirming the judgment of the trial court. Afterwards the relator filed a motion for rehearing in the Springfield court, and in assigning the grounds for the motion some of them related to the merits of the cause and others to the question of the jurisdiction of the court under the Constitution and laws of the state. That motion was overruled. Then the relator filed a motion to transfer the cause to the Supreme Court, reiterating in various forms the point that the Springfield court had no jurisdiction of cause, that the St. Louis court alone had jurisdiction, that the act of the General Assembly above mentioned under which the cause was transferred was unconstitutional. That motion was also overruled. Then the relator applied to this court for a writ of mandamus to compel the removal to this court, whereupon an alternative writ issued as prayed.

1. The question of the constitutionality of the act of June 12, 1909, under which the case of Willis Coal M. Co., v. Furstenfeld et al., 129 S. W. 1028, was transferred from the St. Louis Court of Appeals to the Springfield Court of Appeals, has just been decided by this court in the case of State ex rel. Dunham v. J. P. Nixon et al. (the opinion not yet officially published) 133 S. W. 336. It was in that case decided that the act in question was unconstitutional and void. We deem it unnecessary to go over that ground again, since what is said in that case is an answer to the same question in this case. It follows from the conclusion reached in that case that the Springfield Court of Appeals acquired no jurisdiction of the case of Willis Coal M. Co., v. Furstenfeld et al. by virtue of the order of the St. Louis Court of Appeals transferring the cause, and, if that were all there is in this case, we would have to hold that the action of the Springfield Court of Appeals hearing the cause and rendering judgment therein was illegal, and that its judgment was of no effect.

2. But there is a question in this case that was not in the Dunham Case, above mentioned. Although the Springfield Court of Appeals acquired no jurisdiction of relator's case by virtue of the transfer, yet did the action of relator in filing his record and briefs in that court, after his motion to return the case to the St. Louis court had been overruled, amount to a waiver of the question of jurisdiction or to a consent to the jurisdiction of the Springfield court? What did he file his abstract of the record and his briefs for? What use did he expect would be made of them? The return of the respondents says they took the case as submitted on briefs, and gave relator's briefs due consideration in reaching their conclusion. If relator had appeared by his counsel and argued the case orally, it would not have been a more absolute appearance. It has been said that, since our statute requires a defendant to plead all his defenses in one answer, he is not to be adjudged as waiving his plea to the jurisdiction if, in compliance with the statute, he pleads also to the merits. But, however that may be, when the relator filed his briefs on the merits of his case in the Springfield court, he was not acting under the coercion of that statute. He could have entered his limited appearance for the purpose of the motion to return the case to the St. Louis court, and have forfeited no right to afterwards appear, if he should so desire, to the merits. We cannot consider the act of sending of the abstract of the record and the briefs to the clerk as having any other significance than the entering of relator's appearance and submitting the case on...