State v. Smith

• Decision Date: 04 March 1903
• Citation: State v. Smith, 73 S.W. 211, 173 Mo. 398, 61 L.R.A. 166 (Mo. 1903)
• Parties: STATE ex rel. HOBART v. SMITH et al., Judges.
• Court: Missouri Supreme Court

73 S.W. 211

173 Mo. 398

STATE ex rel. HOBART v. SMITH et al., Judges.

Supreme Court of Missouri.

March 4, 1903.

SUPREME COURT—COURTS OF APPEALS—JURISDICTION—REVIEW OF DECISION ON CERTIORARI.

1. While, under Const. Amend. art. 6, § 8, the Supreme Court has a superintending control over the Courts of Appeals, and the power to issue writs of mandamus, quo warranto, and certiorari, and to hear and determine the same, certiorari brings up only the record, and jurisdictional defects apparent therein, and will not lie to review a judgment of the Court of Appeals on the merits.

2. Under Const. Amend. art. 6, § 8, defining the jurisdiction of the Courts of Appeals, and excluding the cognizance of constitutional questions therefrom, where an opinion of the Court of Appeals shows that in reaching its decision no constitutional questions were considered or involved, and it does not appear that the court in any way exceeded its jurisdiction, as defined in the Constitution, certiorari will not lie to review its decision.

3. Under Const. Amend. art. 6, § 6, providing that the Court of Appeals must certify a cause to the Supreme Court when any one of the judges deems its opinion contrary to a previous decision of the Courts of Appeals or Supreme Court, and that the last previous ruling of the Supreme Court shall be controlling authority on the Courts of Appeals, the fact that the Court of Appeals has not followed the rulings of the Supreme Court or of the Courts of Appeals will not entitle the aggrieved party to have its opinion reviewed on certiorari in the Supreme Court when no judge of the Court of Appeals deems the opinion contrary to such ruling or decision.

In Banc. Certiorari by the state, on relation of Byron F. Hobart, against Jackson L. Smith and others, Judges of the Kansas City Court of Appeals. On motion to quash. Motion granted.

On the 23d day of June, 1902, relator sued out before one of the members of this court a writ of certiorari, directed to respondents, Judges of the Kansas City Court of Appeals, returnable on the 14th day of October, 1902, alleging in the petition for said writ that the judgment of that court in affirmance of the court below, rendered June 2, 1902, was against numerous decisions rendered by the St. Louis Court of Appeals and by the Supreme Court; that the construction put upon section 2786, art. 6, c. 42, Rev. St. 1889, relating to the effect of the consolidation of business corporations, was contrary to the federal and state Constitutions, guarantying due process of law, and prohibiting the states from impairing the obligations of contracts, and that said court had proceeded irregularly and had exceeded its jurisdiction in a certain matter pending before them, wherein the Springfield Lighting Company was respondent and plaintiff, and Byron F. Hobart was appellant and defendant—commanding respondents that they cause to be certified officially to the Supreme Court all of the pleadings in said cause, with all their acts and proceedings in connection therewith, and in the meantime they proceed no further therein. The writ was duly served upon respondents on the 24th day of June, 1902. Thereafter, on January 27, 1903, respondents filed their motion to quash the writ and dismiss the cause upon the following grounds:

"(1) Because the writ was improvidently issued.

"(2) Because, upon the petition and return in this case, it fully appears that the Kansas City Court of Appeals had full jurisdiction, under the Constitution and laws of this state, to adjudicate upon the matters involved in said case of The Lighting Company v. Byron F. Hobart, and acted throughout within its jurisdiction, and that there is no ground whatever upon which to base this proceeding.

"(3) Because the judgment and opinion of the Kansas City Court of Appeals was rendered and concurred in by all the members of said court; that no one of said judges certified or claimed that such decision was contrary to any opinion of either of the Courts of Appeals in this state or of this court; that there was no constitutional question raised or preserved in the trial court, and hence the judgment and opinion of the Kansas City Court of Appeals in that case is not reviewable by this court for any mere alleged errors of law committed by it.

"(4) Because the record in this case shows that the Kansas City Court of Appeals proceeded regularly within its jurisdiction in said cause, and that its action is not reviewable upon its merits or upon the law by this court; that review of the action of the Kansas City Court of Appeals in this proceeding, which, in effect, would constitute an appeal to this court, cannot be had through certiorari in cases like this, where the laws of the state expressly deny an appeal, and make the decision of the Kansas City Court of Appeals final."

The petition for the writ sets out the entire record in the original case, as well, also, as the opinion filed in the case by the Court of Appeals; but, for the purposes of a determination of this proceeding, it is only necessary to set out that opinion, as it contains a full and fair statement of the facts in the original case, and the reasons for the conclusions reached. It is as follows:

"It appears from the allegations of the plaintiff's petition that the Springfield Electric Lighting Company, the Springfield Gaslight Company, and the Metropolitan Electric Railway Company were each corporations created and organized under the provisions of article 8, c. 42, Rev. St. 1889, and that the first two of them were on the 30th of June, 1893, under the authority conferred by section 2786 of said article, consolidated and united under the name of the Springfield Lighting Company, the plaintiff. It further appears that some time prior to the said consolidation the said Metropolitan Electric Railway Company entered into a written contract with the said Springfield Electric Light Company whereby the former agreed and bound itself to furnish and supply the latter power to operate its lighting apparatus, as therein specified, for a period of ten years. It still further appears that at the time of the entering into said contract the said Metropolitan Electric Street Railway Company and Hobart, the defendant, entered into a certain bond, by which they bound themselves to pay the said Springfield Electric Light Company the sum of three thousand dollars, conditioned that if said Metropolitan Electric Railway Company should do and perform, on its part, all the conditions required of it by the terms of said contract, fully and completely, then the said bond was to be void; otherwise to remain in full force. It is also further disclosed by the allegations of the petition that, at the time the said contract was entered into, the Springfield Electric Lighting Company was engaged in furnishing light both to the city and to individuals therein, and that after the creation of the consolidated company, the plaintiff, `holding and enjoying all the rights, privileges, power, franchises, and property belonging to each of the incorporations out of which it was formed,' continued to furnish light to the said city and individuals therein, as the said Springfield Electric Light Company had done, and that the said Metropolitan Electric Railway Company supplied it with power, and otherwise complied with the requirements of said contract as it had done before the consolidation, until a certain named date, when it refused further compliance, etc. The defendant interposed a demurrer to the petition on the ground that it shows upon its face that the alleged bond upon which defendant was security was given to the Springfield Electric Lighting Company as obligee, while the plaintiff in this case is a separate and different legal entity. The court overruled the demurrer, and the defendant having elected to stand thereon, and declining to plead further, judgment was given for the plaintiff.

"The defendant, by his appeal, has brought before us for review the action of the trial court in overruling his demurrer to the petition. In support of the ground of such demurrer the defendant contends (1) that the defendant, as surety, bound himself to `indemnify the Springfield Electric Lighting Company for the failure of the Metropolitan Electric Railway Company to supply electric power to that company, but did not bind himself to indemnify the plaintiff, another and different legal entity; and (2) that by reason of the amalgamation of the Springfield Electric Light Company with the Springfield Gaslight Company, and by which another company was formed, it was made impossible for the Springfield Electric Railway Company to furnish electric power to the Springfield Electric Lighting Company. If these contentions can be sustained, it is quite manifest that the demurrer should have been sustained, and whether or not they should be is to be determined by the construction placed upon the contract of suretyship.

"It appears that the rule prevailing in respect to ordinary contracts of suretyship is that the surety is the favorite of the laws, and has the right to stand upon the strict terms of his obligation. Brandt on Suretyship, § 97; Bayless on Sureties, 144, 145, 260. He cannot be carried beyond his contract. The contract made by the parties must be judged of, and not another substitued in its stead. It cannot be varied without his consent, and a surety for a definite engagement shall not be extended to an indefinite one. Ludlow v. Simond, 2 Caines Cas. 1. It was declared by the Supreme Court of the United States in Miller v. Stewart, 9 Wheat. 680, 6 L. Ed. 189, that `nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he sustain no injury...