State v. Robertson

• Decision Date: 02 April 1915
• Docket Number: No. 18666.,18666.
• Parties: STATE ex rel. GILMAN et al. v. ROBERTSON et al., Judges of Springfield Court of Appeals.
• Court: Missouri Supreme Court

175 S.W. 610

264 Mo. 661

STATE ex rel. GILMAN et al. v. ROBERTSON et al., Judges of Springfield Court of Appeals.

No. 18666.

Supreme Court of Missouri.

April 2, 1915.

In Banc. Certiorari on the relation of C. G. Gilman and others against W. R. Robertson and others, Judges of the Springfield Court of Appeals. Writ quashed.

This is an original proceeding instituted in this court praying for a writ of certiorari to review the record of the Springfield Court of Appeals in the case of Nick Gooch, Respondent, v. C. G. Gilman, O. B. McKnight, H. C. McElhaney, Bart Morrow, and C. W. McAbee, Appellants, relators here (no written opinion), and asking that the judgment of the Springfield Court of Appeals be quashed, etc.

The facts as here presented are few and undisputed. On the 2d day of May, 1914, Nick Gooch recovered a judgment for $1,406 against the relators in the circuit court of Jasper county. The defendants there, the relators here, took an appeal to the Springfield Court of Appeals, but failed, as counsel for respondents here contend, to file in that court a certified copy of the judgment and order granting the appeal; also failed to pay the $10 docket fee in the appellate court. On October 5, 1914, the October term of the Court of Appeals convened; and on September 22, 1914, the respondent Gooch filed in that court a motion to affirm the judgment of the circuit court. Notice of said motion was duly served upon the appellants there, the, relators here. On the same day the appellants there, the relators here, caused to be filed in the Court of Appeals a certified copy of the judgment of the circuit court, and of the order granting the appeal. On September 29th of the same year the relators here made application for a continuance, and thereafter, on the 12th day of October, 1914, the Court of Appeals sustained the respondent's (Gooch's) motion to affirm the judgment of the circuit court. On the 20th day of October, same year, relators here filed in the Court of Appeals a motion for a rehearing, which was by that court overruled, and thereupon the relators filed in this court their petition for a writ of certiorari, which was duly issued and returnable to the present January call of this court.

M. R. Lively, of Webb City, for relators. R. A. Mooneyham, of Carthage, and Frank L. Forlow, of Webb City (W. M. Williams, of Boonville, E. P. Garnett and Atwood & Hill, all of Kansas City, Kendall B. Randolph, of St. Joseph, and Park & Brown, of Kansas City, of counsel), for respondents.

WOODSON, C. J. (after stating the facts as above).

I. The facts of this case, as previously stated, are undisputed; and upon those facts there are here presented but two legal propositions for determination, namely: First, Has this court the constitutional power or authority to review the errors (not the jurisdiction) of the various Courts of Appeals of the state, upon writs of certiorari? And, second, if so, did the Springfield Court of Appeals correctly dispose of the case of Gooch, Respondent, v. C. G. Gilman et al., Appellants, pending in that court, according to the last rulings of this court?

Attending the first: This question is like Banquo's ghost; it seems as though it will not down, and is being continually presented here for reconsideration, ever since the ruling of this court in the cases of State ex rel. v. Broaddus, 238 Mo. 189, 142 S. W. 340, and Curtis v. Sexton, 252 Mo. 221, 159 S. W. 512, overruling a long list of opinions delivered by this court covering a period of more than a quarter of a century.

While I have not changed my opinion as regards the soundness of the law as announced in the earlier cases, nor as to the unsoundness of the rule announced in the case just mentioned, however, since the court adheres to the latter doctrine, it seems to me that it is exceedingly unwise to have this question continually agitated in this court. The fundamental principles of jurisprudence and the rules of procedure should remain firm and unchangeable, except by legislative enactment, for there is nothing which subjects the courts of the country to more just criticism than instability and vacillation in the rulings regarding their jurisdiction and power and authority, as well as to the rules of procedure. After these years of acquiescence to the new rule by a majority of the members of the court, at this late date to overturn the Present rulings upon this question and return to the former doctrine would, in my opinion, be as unwise as the record of this court for the last few years clearly shows the former change was unwise and harmful to jurisprudence. But, since the bench and bar and counsel and litigants have readjusted themselves to the new procedure, a change back to the old rule would, to say the least, produce as much evil as good, if not more, and raise a new conflict in the ordinary administration of justice which would take years to settle and to restore confidence in the stability of the courts and the proper administration of the law.

For the reasons stated, I am of the opinion that it would, at this late day, be unwise to again change front upon this all-important question; and I am therefore of the opinion that later rulings should be adhered to.

II. Returning to the second proposition presented for determination, namely, whose duty is it to file the transcript of the record of a judgment of the circuit court in the appellate court when an appeal is taken, that of appellant or that of the clerk of the circuit court? This court has repeatedly held that that duty rests upon the appellant, and that he cannot shift it upon the clerk. Caldwell v. Hawkins, 46 Mo. 263; State v. Dempsey, 16S Mo. App. 300, 153 S. W. 1064; Sections 2047, 2048, and 2049, R. S. 1909; Rule 28, Supreme Court (169 S. W. xi) October, 1901; Crawford v. Railway Co., 171 Mo. 68, loc. cit. 77, 66 S. W. 350; State v. Gibson, 187 Mo. 536, loc. cit. 558, 86 S. W. 177. That being true, and the record showing that he did not perform that duty within the time prescribed by the statutes and rules of this court, we are of the opinion that the Springfield Court of Appeals properly dismissed the appeal. We are therefore of the opinion that the writ of certiorari heretofore issued by this court was improvidently done, and for that reason should be quashed; and it is so ordered.

BROWN, J., concurs in result. GRAVES, WALKER, FARIS, and BLAIR, JJ., concur in result in a separate opinion by GRAVES, S. BOND, J., dissents in opinion filed.

GRAVES, J. (concurring).

I concur fully in the second paragraph of the learned Chief Justice's opinion. I also concur in the first paragraph wherein he states that it would be unwise to depart from the rule announced in the recent cases of State ex rel. v. Broaddus, 238 Mo. 189, 142 S. W. 340, and Curtis v. Sexton, 252 Mo. 221, 159 S. W. 512, but I concur for a different reason from the one assigned by the Chief Justice. I concur for the reason that, under the Constitution, there can be no doubt about the right of this court to use the writ of certiorari to quash the record of a Court of Appeals whenever such court reaches its judgment by refusing or failing to follow the last previous ruling of this court upon the doctrine of law or equity involved in the case before such Court of Appeals. The question suggests a bird's-eye view of Missouri's judicial system. In the briefs it is suggested that some of our previous cases were written by judges who were members of the constitutional convention of 1875, and that they were blessed with lights which we do not have. No man holds in higher regard the distinguished judges who have written upon the question than the writer. This applies to those who were not in the constitutional convention of 1875 as well as those who were. But this is largely by the wayside.

When the Constitution (both the original and the amended) is read as a whole, it is clear that the framers contemplated a judicial system, with one Supreme Court at the head of that system. It is clear that they contemplated that, as to all doctrines of both law and equity, there should be one final arbiter, and that arbiter the body which they chose to designate as the Supreme Court. It was never contemplated that one doctrine of law or equity should apply in certain appellate jurisdictions, and another and different doctrine in other appellate jurisdictions. Throughout the entire document (both the original and amended) runs the idea of harmony in the law. Not only so, but with this idea is the further one that there has been vested in the Supreme Court the power to enforce harmony of decision, in so far as they touch upon doctrines of law or equity. This is as it should be, because without a power lodged in some one body harmony in the doctrines of the law announced is but an irridescent dream. It is all well enough to say that the judges of the Court of Appeals are just as Conscientious in the performance of their duties as are the judges of this court (a question cheerfully conceded), and that they will certify cases here when occasion requires it; but that does not answer the question here involved. Judges, like individuals, honestly differ and give different constructions to the same language at times, and discrepancies in announced doctrines will creep in unless there is a power (at the head) somewhere to act as final arbiter. On this question of the right of this court to issue the writ of certiorari in this case I shall confine my remaining remarks.

II. By the organic law (article 3, Const. 1875) the powers of government were committed to three separate and distinct magistracies. By the same instrument (article 4) the legislative power, with designated restrictions, was confined to "the General Assembly of the state of Missouri." By the same document (section 1, art. 5) the executive power was vested in the Governor and other named and designated officers. By article 6 the judicial power "as to matters of...