State v. Shain

• Citation: 138 S.W.2d 649
• Decision Date: 03 November 1939
• Docket Number: No. 36392.,No. 36396.,36392.,36396.
• Parties: STATE ex rel. MASSMAN CONST. CO. v. SHAIN et al., Judges. STATE ex rel. HENDERSON v. SAME.
• Court: United States State Supreme Court of Missouri

138 S.W.2d 649

STATE ex rel. MASSMAN CONST. CO. v. SHAIN et al., Judges.

STATE ex rel. HENDERSON v. SAME.

No. 36392.

No. 36396.

Supreme Court of Missouri, Division No. 1.

November 3, 1939.

Certiorari proceedings by the State, at the relation of the Massman Construction Company, and at the relation of Mitchel J. Henderson, against Hopkins B. Shain and others, judges of the Kansas City Court of Appeals, to quash the record and opinion of the Kansas City Court of Appeals in Nelson v. Massman Construction Co. et al., 120 S.W.2d 77. The opinion was quashed in part in the proceeding brought by the Massman Construction Company, and the writ in the Henderson case was quashed by the Supreme Court, 130 S.W.2d 491, and the Massman Construction Company moves to tax costs in both of the causes.

Motion allowed in part and overruled in part.

Martin J. O'Donnell, of Kansas City, for relators.

W. M. Raines, of Kansas City, for respondents and Thos. E. Deacy.

BRADLEY, Commissioner.

The opinion in the above consolidated causes (in certiorari) was handed down at the May term, 1939, and is reported in Mo.Sup., 130 S.W.2d 491. The purpose was to quash the record and opinion of the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77. The opinion and judgment in cause No. 36,392 quashed, in part, the opinion and record in the Nelson case [120 S. W.2d 77] and the opinion and judgment in cause No. 36,396 quashed the writ issued in that case. The Massman Construction Company duly filed a motion to tax costs in both of the certiorari causes, Nos. 36,392 and 36,396.

By the motion in No. 36,392, the Massman Construction Company asks that the docket fee and the costs of printing the abstract be taxed against Thomas E. Deacy who was the beneficiary of the judgment and opinion of the court of appeals. By the motion in cause No. 36,396, the Massman Construction Company asks that the cost of printing what is called a counter abstract be taxed against Mitchel J. Henderson, who was the relator in that cause.

We will first consider the motion in case No. 36,392. Thomas E. Deacy, by his counsel, has filed suggestions in opposition to the motion to tax costs in No. 36,392. It is suggested that the certiorari proceeding, instituted by the Massman Construction Company, was an original proceeding, and was against the judges of the Kansas City Court of Appeals, and that he, Deacy, was not a party to such proceeding, and that in the situation this court has no power to tax costs against him. No authority is cited in support of the suggestions. Reference, however, is made to Sec. 1028, R.S. 1929, Mo.St.Ann. § 1028, p. 1310. This section, among other things, provides that "if the abstract filed by the appellant or plaintiff in error be sufficient and correct, a reasonable charge therefor shall be taxed against the respondent or defendant in error, if he be the losing party." It will be observed that Sec. 1028 is no authority for taxing costs in a certiorari proceeding, since this section has reference only to appeals and writs of error. Certiorari, in the supreme court, to quash an opinion of a court of appeals, while usually considered as an original proceeding, is not entirely original as distinguished from the term appellate. "Certiorari is appellate in the sense that it involves a limited review of the proceedings of an inferior jurisdiction; it is original in the sense that the subject matter of the suit or proceeding which it brings before the court is not reinvestigated, tried and determined on the merits generally, as on appeal at law or writ of error." 11 C.J. 90. In certiorari to quash an opinion of a court of appeals the parties are not the same as the parties to the cause, or action determined by the court of appeals. Such proceeding (certiorari) is a new, distinct, and separate action from that decided by the court of appeals, and is not a continuation of the original suit or action decided by the court of appeals. State ex rel. Jacobs v. Trimble et al., 310 Mo. 150, loc. cit. 155, 274 S.W. 1075.

Sec. 3, Art. 6 of the Constitution, Mo.St.Ann., provides: "The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same." Sec. 8 of the Amendment of 1884 provides: "The Supreme Court shall have superintending control over the courts of appeals by mandamus, prohibition and certiorari." Under these provisions and in a proper case, the supreme court has the power to quash the record and opinion of a court of appeals. State ex rel. Curtis v. Broaddus et al., 238 Mo. 189, 142 S.W. 340.

Sec. 1249, R.S. 1929, Mo.St.Ann. § 1249, p. 1473, provides that "in all cases where either party shall sue out a certiorari upon any judgment where the same shall be allowed by law, the successful party in the superior court shall recover costs in both courts." What is now Sec. 1249 was enacted in 1835, Rev. Stat. 1835, p. 129, Sec. 15. There were no court or courts of appeals, as we now have, when Sec. 1249 was first enacted. Then the only appellate court, superior to the circuit court, was the supreme court, but what is now Sec. 3, Art. 6 of the Constitution, set out, supra, was then a part of the Constitution. Sec. 1249, R.S. 1929, is a part of Art. 20, Chap. 5, R.S. 1929, relating to costs, and for the most part, the article pertains to costs in the circuit court, but there is nothing in the...