State v. Smith

• Decision Date: 17 March 1903
• Citation: 73 S.W. 134,172 Mo. 618
• Parties: STATE ex rel. CITY OF STANBERRY v. SMITH et al., Judges.
• Court: Missouri Supreme Court

73 S.W. 134

172 Mo. 618

STATE ex rel. CITY OF STANBERRY v. SMITH et al., Judges.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

APPEAL — DISMISSAL BY COURT OF APPEALS — ABSTRACT OF RECORD — FAILURE TO SET OUT JUDGMENT — COMPELLING REINSTATEMENT OF APPEAL — MANDAMUS — JURISDICTION OF SUPREME COURT — LACHES.

1. Under Const. art. 6, § 2, giving the Supreme Court "a general superintending control over all inferior courts," with power "to issue writs of habeas corpus, mandamus," etc., and section 8 of the amendment adopted in 1884 giving it "superintending control over the Courts of Appeals by mandamus, prohibition, or certiorari," the Supreme Court has authority to require one of the Courts of Appeals to hear and determine a cause over which it has jurisdiction.

2. An appeal should not be dismissed for failure to set out the judgment in the abstract of the record where the appellant has duly filed a certificate, as required by Rev. St. 1899, § 813, showing the day of the month and of the term when the judgment was rendered and the judgment itself, especially where the judgment itself is not challenged.

3. A third party recovered judgment against a city in the circuit court, and it appealed to the Court of Appeals. The appeal was dismissed, the mandate being sent down to the circuit court only a few days before the final adjournment of the Supreme Court at its April term, 1902. Application for mandamus to compel the Court of Appeals to reinstate the appeal was made at the October term of the Supreme Court. Prior thereto the third party had instituted proceedings in the circuit court to enforce the judgment by mandamus against the city. The mandamus from the circuit court was continued to its December term. The alternative writ issued out of the Supreme Court in November. The rights of no third parties had intervened. Held, that the city was not precluded from having its appeal reinstated on account of laches.

4. The fact that the Court of Appeals had adjourned for the term in no manner affected the jurisdiction of the Supreme Court to issue a writ of mandamus directing it to reinstate an appeal which it had dismissed.

Original application by the state, on the relation of the city of Stanberry, for a writ of mandamus directed to Jackson L. Smith, James Ellison, and E. J. Broaddus, Judges of the Kansas City Court of Appeals. Writ granted.

This is an original proceeding in this court by relator to obtain a peremptory writ of mandamus directing the Judges of the Kansas City Court of Appeals to reinstate the cause of Nellie Campbell against the city of Stanberry, and to hear and determine an appeal in said cause, heretofore certified to said court and by it dismissed. The following summary of the facts will suffice for a proper understanding of the opinion:

In 1896 Miss Nellie Campbell brought her action against the city of Stanberry for damages resulting to her from a fall into an excavation in one of the public streets of said city, and recovered judgment against said city for $2,500 at the September term, 1900, of the circuit court of Gentry county. From that judgment the defendant city appealed to the Kansas City Court of Appeals. At the September term, 1900, of the circuit court, after the motions for new trial and in arrest of judgment had been filed and overruled, leave was given defendant to file a bill of exceptions during the December term, 1900, of said court, and afterwards during the December term of said circuit court, and on the 22d day of December, 1900, the defendant filed its bill of exceptions, signed and sealed by the judge of said court. Thereafter, to wit, on the 8th day of February, 1901, and more than 15 days before the March term, 1901, of the Kansas City Court of Appeals, a certified copy of the record of the judgment of the circuit court, showing the term and day of the term, month, and year at which the same was rendered, together with the order granting the appeal to the Kansas City Court of Appeals, was filed in the office of the clerk of the said Court of Appeals. Afterwards the said cause was duly set down for hearing in said Court of Appeals on the ___ day of October, 1901, and continued by agreement until March term, 1902, of said court. Prior to said appeal the Kansas City Court of Appeals had adopted and promulgated certain rules of practice therein, among which was the following rule, numbered 15, in regard to abstracts of record: "In all cases the appellant or plaintiff in error shall file with the clerk of this court on or before the day preceding the day on which the cause is docketed for hearing, five copies of a printed abstract or abridgment of the record in said cause setting forth so much thereof as is necessary to a full understanding of all questions presented to this court for decision." Said rule further provides that "the appellant or plaintiff in error shall also deliver a copy of said abstract to the attorney for respondent or defendant in error at least twenty days before the day on which the cause is docketed for hearing." Another rule of said court, numbered 18, provides: "If any appellant or plaintiff in error, in any civil cause shall fail to comply with the provisions of rule numbered 15, the court when the cause is called for hearing, will dismiss the appeal or writ of error, or at the option of respondent or defendant in error, continue the cause, at the costs of the party in default. No oral argument will be heard from any counsel failing to comply with the provisions of rule 15."

On the 25th of February, 1902, the appellant, the city of Stanberry, filed in the office of the clerk of the Kansas City Court of Appeals five copies of an abstract of record in said cause, which abstract contained:

First. The petition, the answer, and reply, the same being all the pleadings in said cause.

Second. The statement, as follows: Showing a history of the trial of the cause, and the finding of the verdict by the jury. Under the instructions of the court, the jury found a verdict for the plaintiff in the sum of $2,500.

Third. Under the caption of "The Abstract of Record," a full and complete copy of the bill of exceptions as filed in the circuit court of Gentry county, including a statement that the cause was tried at the September term, 1900, of the circuit court of Gentry county, Mo., before Hon. Gallatin Craig, Judge, and a jury, and the following proceedings were had and done; said bill of exceptions including all the evidence in said cause; the objections and rulings, and the exceptions thereto; the instructions given and refused, and the exceptions thereto; the statement that the jury returned a verdict in favor of the plaintiff, assessing her damages at $2,500, and that on the same day that said verdict was returned the defendant filed its motion for a new trial and in arrest of judgment, being set out in full; the action of the court in overruling said motion and the exceptions to said ruling, all of which is stated in said printed abstract to be contained in and forming a part of said bill of exceptions; and said abstract further stated that said bill of exceptions was allowed, signed, and sealed on the 22d day of December, 1900, and the signature of the judge of said circuit court, namely, Gallatin Craig, Judge, is printed in said abstract at the conclusion of said bill of exceptions. That after setting out said bill of exceptions, and the signature of the judge thereto, the following was stated in said abstract of the record, to wit: Indorsed as follows: "Filed December 22, 1900. Dale S. Flowers, Clerk Circuit Court." That said motion for a new trial asked the court to set aside the verdict because against the law and the evidence, and for other reasons, and said motion in arrest states that the judgment upon the record is erroneous, and the court erred in overruling defendant's motion for a new...