Suburban Bank of Kansas City v. Proposed Jackson County State Bank of Kansas City
| Decision Date | 29 June 1959 |
| Docket Number | No. 23026,23026 |
| Parties | SUBURBAN BANK OF KANSAS CITY, Petitioner, v. PROPOSED JACKSON COUNTY STATE BANK OF KANSAS CITY, Defendant. |
| Court | Missouri Court of Appeals |
McFadden & Blair, Jefferson City, Skelton & Bradley, Lexington, for petitioner.
Sebree, Shook, Hardy & Ottman, E. Frederick Beihl, Kansas City, for defendant.
This is an appeal by the petitioner, Suburban Bank of Kansas City, from a final judgment of the Circuit Court of Cole County. There is pending before this court a motion, filed by the Jackson County State Bank, to dismiss the appeal because it appears from the face of the transcript filed herein that the Circuit Court of Cole County did not have jurisdiction of the cause at the time it rendered the judgment appealed from.
The facts necessary for a decision of the question of dismissal are briefly stated as follows: On October 22, 1957, the Commissioner of Finance of Missouri denied the Jackson County State Bank a certificate to operate as a bank, and the bank appealed such decision to the State Banking Board. On February 4, 1958, a hearing was held before that board, at which time all interested parties appeared and offered evidence. The Suburban Bank of Kansas City was one of the protestants against the issuance of the certificate. On February 28, 1958, the State Banking Board issued its order directing the Commissioner of Finance to issue a certificate to the Jackson County State Bank, and stated in the order that 'the full transcript of the proceedings the testimony given, the evidence offered and the rulings thereon, at said hearing, has been prepared and is in the possession of the Board'. On March 12, the Commissioner of Finance issued the certificate to the Jackson County State Bank, which certificate was recorded in the office of the Recorder of Deeds of Jackson County on March 27th.
On April 7th, the Suburban Bank filed in the office of the Clerk of the Circuit Court of Cole County its petition for review of the order and decision of the State Banking Board, in which it prayed for a reversal of said order. This petition was filed within thirty days after the 'agency's final decision', as required by Section 536.110 RSMo 1949, V.A.M.S. However, the record of the proceedings before the State Banking Board was not filed in the circuit court within thirty days after the filing of the petition for review; Sec. 536.130. But on May 17th, ten days after the time the record should have been filed, the petitioner filed motion in the circuit court for extension of time for filing such record, and alleged that the delay was not due to its inexcusable negligence. On the same day, the Jackson County State Bank filed its motion to dismiss the petition for review because the record had not been filed within the thirty-day period. The transcript before us recites: 'Hearing on petitioner's application for extension of time to file transcript was held on May 20, 1958, and after the presentation of the parties, the court granted petitioner's application as prayed, and extended the time for filing the transcript until June 7, 1958'. An order of record was made in accordance with that finding.
Thereafter, and on May 27th, the transcript of proceedings before the State Banking Board was filed. On June 27th, the cause was heard in the circuit court and taken under advisement. On November 21, 1958, the court made certain Findings of Fact and Conclusions of Law, and entered a final judgment thereon.
The pertinent part of the Findings of Fact relative to the motion to dismiss the appeal is in substance as follows: That the petitioner failed to file with the clerk of the circuit court the transcript of the record of the proceedings before the State Banking Board within thirty days after it had filed its petition for review, as required by Section 536.130(1), although such transcript was actually prepared and available for filing prior to the issuance of the order of the State Banking Board and was available for filing at the time petitioner filed its petition; that the petitioner failed to obtain from the circuit court 'within thirty days after the filing of its petition', an order of extension of time within which to file such transcript of the record; that the plaintiff failed to file the transcript of the record in the circuit court within the time prescribed by law; and that the failure of the petitioner to file the transcript of the record of the proceedings before the State Banking Board within the time prescribed by law precludes the jurisdiction of the circuit court over this cause and requires that the petition be dismissed.
However, following the above Findings and Conclusions, the court made the further Findings and Conclusions:
As of November 21, 1958, the court entered the following judgment: '* * * and the court having considered the pleadings, arguments and briefs of counsel for plaintiff and defendant, and the court having reviewed the transcript of the evidence in the hearing before the State Banking Board, and having considered defendant's motion to dismiss petition and the affidavit of Richard R. Nacy, dated August 26, 1958, filed in support of said motion, and being fully advised in the premises, does hereby find, adjudge and decree all issues in favor of the defendant and against the plaintiff; and does further find, adjudge and decree that the Findings of Fact and Conclusions of Law and decision of the State Banking Board are hereby affirmed'.
The affidavit of Mr. Nacy, referred to in the judgment, was to the effect that the transcript of the hearing before the Banking Board was prepared and available to the petitioner at the time the Banking Board made its order on February 28, 1958.
In the transcript filed in this court there also appears the following minutes of the circuit court: 'And on the same day, November 21, 1958, the Court entered its minutes as follows: 'November 21 '58--Findings of Fact and Conclusions of Law filed. Proceedings dismissed for want of jurisdiction in this court for failure to file or secure filing of transcript within time provided by law.''
After these various entries, the petitioner filed its motion for new trial which was overruled, and it perfected appeal to ...
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