State v. Reynolds

• Decision Date: 14 November 1912
• Citation: 245 Mo. 698,151 S.W. 85
• Parties: STATE ex rel. FEDERAL LEAD CO. v. REYNOLDS et al., Judges.
• Court: Missouri Supreme Court

151 S.W. 85

245 Mo. 698

STATE ex rel. FEDERAL LEAD CO. v. REYNOLDS et al., Judges.

Supreme Court of Missouri.

November 14, 1912.

1. REFERENCE (§ 8) — COMPULSORY REFERENCE — PROPRIETY.

Under Rev. St. 1909, § 1996, providing that, where the parties do not consent to reference, the court may direct a reference where the trial of an issue of fact shall require the examination of a long account, a compulsory reference is proper in a suit on contracts involving lengthy accounts, credits, and counterclaims.

2. REFERENCE (§ 103)—APPEAL AND ERROR (§ 1017)—REPORT OF REFEREE—EXCEPTIONS— REVIEW.

In case of reference in equity or compulsory reference in an action at law, the trial court may not only sustain exceptions to the referee's report and set aside his findings, supplanting them with findings of its own, but such rulings and acts are subject to review by the appellate court.

3. COURTS (§ 231)—STATE COURTS—JURISDICTION OF MISSOURI SUPREME COURT.

The amount in dispute by which the jurisdiction of the Supreme Court is fixed is not necessarily determined by the amount of the judgment appealed from, nor by the amount claimed in the petition or counterclaims, but should be determined by the amount that actually remains in dispute between the parties on the appeal, the court having the right to look into the record to determine the amount in dispute; and hence an appeal from a judgment sustaining objections to the referee's report giving defendant judgment over for $2,500 on its counterclaim, and disallowing all defendant's counterclaims and allowing plaintiff a judgment of over $6,500, falls within the jurisdiction of the Supreme Court.

4. PROHIBITION (§ 35)—COSTS.

Where a writ of prohibition is issued against the judges of an intermediate appellate court, it should go at the relator's costs, for judges should not be mulcted in costs for errors of judgment.

En Banc. Original application by the State, on the relation of the Federal Lead Company, for writ of prohibition against George D. Reynolds and others, as judges of the St. Louis Court of Appeals. Writ issued.

Robert & Robert, of St. Louis, for relator. Seneca N. Taylor, of St. Louis, for respondents.

LAMM, J.

The Federal Lead Company, complaining of the St. Louis Court of Appeals for that it was exercising jurisdiction of an appeal from a judgment of the St. Francois circuit court in favor of Abbot-Gamble Company against said Lead Company, moved for a preliminary rule here in prohibition. Such rule was issued and served, citing respondents, the judges of that court, to show cause. By their return and by a demurrer thereto an issue at law is sprung, to wit, whether on that return and on the record lodged in the Court of Appeals in the original cause (and presented here for our consideration) the rule should be made absolute and a writ go. At a certain time the Abbot-Gamble Company sued the Lead Company in three counts, the subject-matter of all of them relating to a contract by which the former undertook to furnish the labor, machinery, and material (barring certain exceptions) to construct the foundations and ground floors for the latter's mill and reduction works near Flat river. In the first count judgment was asked for $11,882.29 (on a quantum meruit), by the second, for $1,011.45 (additional labor and work), by the third $9,300 (loss of profits).

For its first defense in that cause, Lead Company relied on a general denial. For its second, by way of affirmative allegations of matter constituting a counterclaim, and further by way of specific denials and admissions, its answer worked out the result that plaintiff had earned under the contract a surplus over payments in the sum of $3,766.54, but that there was due from plaintiff to defendant (by reason of averments of fact made in the answer) a much larger sum than that. As to the second count, the amount claimed thereon by plaintiff stood confessed, but it was averred that plaintiff owed defendant, by reason of certain facts, a much larger sum. The answer then goes on to set up counterclaims arising out of the contract and transaction pleaded as the foundation of plaintiff's claim; one counterclaim aggregating $15,688.26 and another $788.70. A reply coming into this answer (and defendant also replying to the new matter set up in plaintiff's replication) on motion of plaintiff the cause was ordered referred to Julian Paul Cayce, Esq., as referee, who qualified and assumed the burden. After a year and four months spent in taking a great volume of testimony, the referee reported the amount due defendant on the counterclaims to be $17,209.83, and the amount due plaintiff on the causes of action stated in its petition to be $14,553.15, leaving due defendant, on striking a balance, the sum of $2,656.68. For that balance the referee recommended a judgment in favor of defendant.

(Note. — While the matter was in fieri, plaintiff became a bankrupt and Mr. Folks, its trustee in bankruptcy, was allowed to appear as a party and carry on the suit.)

At the proper stage, plaintiff filed exceptions to the report of the referee, but defendant was content, and filed none. Presently plaintiff's exceptions were sustained, all defendant's counterclaims were disallowed, and judgment went in plaintiff's favor on the first and second counts in the aggregate sum of $6,817.48. From that judgment defendant alone appealed, having in apt form and due time preserved alive its exceptions to the court's action in sustaining plaintiff's exceptions to the referee's report, in disallowing its counterclaims, and in giving judgment for plaintiff. The appeal was allowed to the St. Louis Court of Appeals. There defendant filed a motion to transfer the cause here, grounding its motion on the theory that the amount in dispute on appeal exceeded the jurisdiction of the Court of Appeals. That court having overruled that motion, defendant came here with its suggestions for prohibition, with the result stated at the outset. Having summarized enough of the record for our purposes, we are of opinion that on such summary an absolute rule should be entered and a writ go.

This, because:

(a) While the original action was at law, yet the reference in hand was not by "the written consent of parties." R....