State v. Reynolds

• Decision Date: 02 April 1915
• Docket Number: No. 18382.,18382.
• Citation: 175 S.W. 575,265 Mo. 88
• Parties: STATE ex rel. CITY OF KIRKWOOD v. REYNOLDS, Presiding Judge, et al.
• Court: Missouri Supreme Court

175 S.W. 575

265 Mo. 88

STATE ex rel. CITY OF KIRKWOOD v. REYNOLDS, Presiding Judge, et al.

No. 18382.

Supreme Court of Missouri.

April 2, 1915.

Rehearing Denied April 12, 1915.

In Banc. Certiorari by the State, on the relation of the City of Kirkwood, suing on the relation of John F. McMahon, against George D. Reynolds and others, constituting the St. Louis Court of Appeals. Record of the Court of Appeals quashed.

Rodgers & Koerner, of St. Louis, for petitioner. H. A. Loevy, of St. Louis, for respondents.

GRAVES, J.

This is a writ of certiorari directed to the judges of the St. Louis Court of Appeals. Such judges have complied with the writ and certified up their record for our review. From the record it would appear that at the March term, 1914, of the St. Louis Court of Appeals there were pending three several actions, each entitled "City of Kirkwood, at the relation of John F. McMahan, Plaintiff, v. Alexander H. Handlan, Jr., and Ella Handlan, Defendants," and in the said Court of Appeals were respectively numbered 13839, 13662, and 13663. It appears that these three cases were consolidated for argument and disposition, because they were all between the seine parties, and involving the same question. The plaintiff had judgments below, and defendants appealed. These judgments the Court of Appeals reversed on the ground that the circuit court of St. Louis county was without jurisdiction. In the opinion filed by the Court of Appeals the situation of the cases is thus stated:

"This is an action to enforce the lien of a special tax bill against certain real property of the defendants located in the city of Kirkwood. The defendant owners of said property resided in the city of St. Louis. The suit was instituted in the circuit court of St. Louis county, and writs of summons were sent to the sheriff of the city of St. Louis, and there served upon defendants. The latter appeared specially and moved to quash the writ, and also to dismiss the action, upon the ground that the circuit court of St. Louis county acquired no jurisdiction by virtue of the service upon defendants in the city of St. Louis. These motions were overruled, and, the cause coming on for trial, defendants not appearing further, the court rendered judgment sustaining the lien of the tax bill. Thereupon defendants again limited their appearance ; filed a motion to set aside such judgment upon the ground that the court had no jurisdiction to enter the same. This motion was likewise overruled, and defendants have appealed to this court.

"The only question involved is whether an action to enforce the lien of a special tax bill may be brought in the county where the land in question is situated, the defendants being residents of the state, but not of such county, and not being found therein. Appellants' position is that this action is governed by section 1751, Rev. Stat. 1909, and must be brought in the county in Which the defendant resides, or in which the plaintiff resides and the defendant may be found; whereas respondent contends that the action is local in its character, and must be brought in the county in which the land lies, and that summons may issue to another county."

The relator here charges that hi the opinion the Court of Appeals has not followed the rulings of this court, as it was required to do by constitutional mandate (section 6, amendment of the Constitution of 1884).

The case is therefore one of compact compass. Was our writ improvidently issued, or have our Brothers of the Court of Appeals failed to heed the last rulings of this court upon the question of law involved? This is the single issue.

I. Singular to say learned counsel for the respondents in their brief have omitted the usual charge that this court has no right to issue a writ of certiorari under the facts pleaded by the petition or relator. It is worthy of note, because of the persistency of counsel generally in raising such question in all cases and at all times. The question was raised in the return, but we take it that upon reflection counsel concluded to abandon that claim. We shall so treat it.

II. Counsel for respondents do urge, however, that this court has never passed upon the exact statute in a case exactly like this, and that for such reason there could be no conflict between the opinion of the Court of Appeals and the opinion of this court. Counsel couches the point in this language:

"This proceeding is certiorari solely on the ground "that the decision of these respondents is in direct conflict with a prior controlling decision of this, the Supreme Court Consequently petitioner must show that there is such a prior controlling decision on the precise and only point in issue, namely, the construction of the word `affect' in section 1753, R. S. 1909. Petitioner admitted at the argument at your bar that there was no such controlling decision."

Upon this point suffice to say that the Constitution does not require what is known in common parlance as a "grey mule" case for the application of our superintending control. The Constitution (section 6 of the amendment of 1884) says:

"And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals."

The divergence of opinion which will authorize this court to quash the opinion and judgment of the Court of Appeals is a contrary holding upon a given "question of law or equity." Rulings upon a "question of law" may be the same, although different states of fact may call for such rulings. In other words, as stated above, there may be a clear contrariety of opinion on a "question of law or equity" without having two cases exact in history or facts—a "grey mule" case is not required.

III. In the case at bar the Court of Appeals, by its opinion, has said that the case of the City of Kirkwood at the Relation of McMahan v. Handlan et al., 168 S. W. 346, is not a case wherein the title to real estate "may be affected" within the meaning of section 1753, R. S. 1909. If the doctrine of law thus announced does not conflict with the last previous ruling of this court upon such a doctrine of law, then our writ should be...