State v. Smith

• Decision Date: 04 March 1903
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CHICAGO, R. I. & PAC. RY. CO. v. SMITH et al., Judges.

72 S.W. 692

172 Mo. 446

STATE ex rel. CHICAGO, R. I. & PAC. RY. CO. v. SMITH et al., Judges.

Supreme Court of Missouri.

March 4, 1903.

APPEAL — DISMISSAL — INSUFFICIENCY OF ABSTRACT — REINSTATEMENT — INTERMEDIATE APPELLATE COURTS — MANDAMUS.

1. 1 Rev. St. 1899, § 813, provides that on an appeal to the Court of Appeals the appellant shall file within 20 days an abstract containing a certified copy of the record of the judgment appealed from, showing the term and day of the term, month, and year on which the judgment was rendered, etc. Court of Appeals Rule 15 provides that appellant shall file a printed abstract of the record, setting forth so much thereof as is necessary, etc., and authorizes respondent to file such further abstract as he may deem necessary, etc.; and rule 18 declares that, if appellant fails to comply with rule 15, the court will dismiss the appeal. Held that, where an abstract was filed in time, the appeal should not have been summarily dismissed for its failure to show the day of the month or of the term when the judgment appealed from was rendered, that matter not being material to any question presented for decision.

2. Under Const. Amend. 1884, § 8 (1 Rev. St. 1899, p. 94), declaring that the Supreme Court shall have superintending control over the Courts of Appeals by mandumus, the Supreme Court has power by such writ to order the Court of Appeals to reinstate and decide an appeal which it improvidently dismissed.

In Banc. Mandamus by the state, on the relation of the Chicago, Rock Island & Pacific Railway Company, against Jackson L. Smith and others, judges of the Kansas City Court of Appeals. Peremptory writ granted.

W. F. Evans, W. M. Williams, and Frank P. Sebree, for relator. Peery & Lyons and Harber & Knight, for respondents.

BRACE, J.

This is a proceeding by mandamus to compel the judges of the Kansas City Court of Appeals to set aside its order dismissing the appeal in a case pending in said court, and to require them to reinstate the cause on its docket, and to proceed to hear and determine the same. There is no dispute about the facts. At the December term, 1900, of the circuit court of Gentry county, James W. Albin, by guardian, obtained judgment against the relator for the sum of $1,000, from which judgment an appeal was taken by the relator to the Kansas City Court of Appeals, in which in due time relator filed "a certified copy of the record entry of the judgment * * * appealed from in said cause, showing the term and day of the term, month, and year upon which the same" was rendered, "together with the order granting the appeal," as provided for in section 813, 1 Rev. St. 1899; and the cause in due course was docketed for hearing on the 3d day of March, 1902. By rule 15 of said Court of Appeals it is provided that: "In all cases the appellant or plaintiff in error shall file with the clerk of this court, on or before the day next 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 the questions presented to this court for decision, together with a brief containing in numerical order, the points or legal propositions relied on, with citation of such authorities as counsel may desire to present in support thereof. The appellant or plaintiff in error shall also deliver a copy of said abstract, brief, points and authorities to the attorney for respondent, or defendant in error, at least twenty days before the day on which the cause is docketed for hearing, and the counsel for respondent, or defendant in error, shall, at least eight days before the day the cause is docketed for hearing, deliver to the counsel for appellant, or plaintiff in error, one copy of his brief, points and authorities cited, and such further abstract of the records as he may deem necessary, and shall, on or before the day next preceding the day on which said cause is docketed for hearing, file with the clerk of this court five copies of the same; and the counsel for appellant, or plaintiff in error, may, if he desires, within five days after the service on him of the respondent's, or defendant in error's abstract and brief aforesaid, file and serve a reply thereto in the manner aforesaid; and the evidence of the service of such abstracts, briefs, points and authorities, as above required, shall be filed by each party at the time of filing said copies with the clerk." As required by said rule, said appellant in due time filed copies of a printed abstract of the record in said cause, together with a brief containing the points relied on and the authorities cited in support thereof, and delivered copies of the same to the attorney for the respondent therein; the errors assigned and argued for reversal being as follows: "(1) The court committed error in refusing to give the demurrers to the evidence offered by the defendant at the close of plaintiff's evidence and at the close of all the evidence. (2) The court committed error in giving plaintiff's first instruction. (3) The court committed error in refusing to give the third instruction requested by the defendant. (4) The evidence was so strongly in favor of defendant as to convince the impartial mind that the verdict was founded on sympathy or prejudice. (5) Plaintiff's instruction No. 3, defining the measure of damages, is erroneous, in that it authorizes damages to be assessed for future pain and anguish likely to be suffered." Thereupon counsel for respondent in due time delivered to the counsel for appellant a copy of their "brief, points, and authorities cited," and filed copies thereof with the clerk of said court. The first point made in their brief is as follows: "The appeal should be dismissed, because appellant's abstract of the record does not show jurisdiction in this court. It contains no final judgment, order granting appeal, or filing bill of exceptions, or other entry of record, or abridgment of such record entries; and it cannot be ascertained from it when the alleged final judgment was rendered, or the motions for new trial and in arrest were filed." The remainder of the brief is in answer to the points and argument made against the judgment in the brief for appellant. Afterwards, on the 28th of February, 1902, the appellant asked leave, filed with the clerk five copies, and served upon counsel for respondent a copy of an additional abstract. Afterwards, on said 3d day of March, 1902, said cause, coming on in due course to be heard, was argued by counsel in behalf of both appellant and respondent and submitted, and afterwards, on the 7th day of April, 1902, by order of said Court of Appeals, the relator's appeal was dismissed, in pursuance of the following opinion: "Per Curiam. This action is for personal injuries alleged to have been suffered by plaintiff. He recovered judgment in the trial court. The appeal is taken under what is known as the `short method.' The abstract of the record does not contain the judgment, or the date when it was rendered. Neither does it set forth the time when the motion for a new trial was filed. Nor does it contain any record entry of the filing of the bill of exceptions. Shortly prior to the day when the cause was set for hearing, an additional abstract was filed, supplying the omissions which we have indicated. But this was without consent of opposing counsel. We will dismiss the appeal." Afterwards, on the 12th of April, 1902, the relator filed its motion for a rehearing to set aside the judgment dismissing the appeal, and to reinstate said cause on the docket of said court, which motion coming on to be heard in due course was, on the 5th of May, 1902, overruled; and, said court still refusing to set aside said dismissal and reinstate said cause upon its docket, on application by the relator to one of the judges of this court, the alternative writ herein was issued, to which the respondents demur.

The original abstract is fairly summarized in the brief of counsel for relator as follows: "The abstract consists of 75 pages and an index, and its contents are as follows: First. The title of the cause, the court, and term thereof. Second. The petition, answer, and reply in full, with statements showing their filing. Third. This statement: `The Trial. And at the December term, 1900, of the said circuit court of Gentry county the trial of said cause was had before the court and a regularly impaneled and qualified jury, and upon said trial and subsequent thereto the following proceedings were had in said cause, as shown by the bill of exceptions [caption omitted] duly filed by the defendant in said court, to wit.' Fourth. Then the bill of exceptions follows, beginning with the heading: `Bill of Exceptions,' and under that heading the following: `Be it remembered, that at the December term of the Gentry county circuit court, 1900, this cause coming on for trial before the Hon. Gallatin Craig, judge, and a jury, the following proceedings were had and done, to wit: The plaintiff, to sustain the issues on his part, adduced testimony in words and figures as follows.' Fifth. Then follow 65 pages of the testimony in full of the several witnesses. Sixth. Directly after the testimony the instructions given and refused are set out, together with the rulings of the court thereon, and exceptions thereto. Seventh. The statement of the return of the verdict for plaintiff assessing his damages at one thousand dollars. Eighth. The statement that on the same day the said verdict was returned the defendant filed ...