The State ex rel. Allen v. Trimble

• Decision Date: 27 June 1927
• Docket Number: 27049
• Parties: The State ex rel. W. J. C. Allen v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

297 S.W. 378

317 Mo. 751

The State ex rel. W. J. C. Allen v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 27049

Supreme Court of Missouri

June 27, 1927

Motion for Rehearing Overruled July 11, 1927.

Record quashed.

H S. Julian for relator.

(1) There is no provision in the Constitution for a special judge of a court of appeals. There is no statute that makes any provision for agreeing on a judge of the Court of Appeals. Sec. 41, Art. 6, Mo. Constitution; Sec. 2, Art. 6, Amendment of 1884. (2) The establishment of a court is an act of sovereignty; that the State through the Constitution or its law making body can also establish a court. Ladd v Forsee, 163 Mo. 506; State ex rel. v. County Court, 50 Mo. 321. Counsel for appellant and respondents could not create a court of appeals by agreement.

Ed E. Aleshire for respondents.

(1) The court erred in issuing the preliminary writ for the reason that it was not presented in due time after the overruling of relator's motion for rehearing. State ex rel Berkshire v. Elliston, 230 S.W. 970. (2) The application on its face for the temporary writ is fatally defective, for it did not show facts sufficient to authorize the writ, as it showed the motion for rehearing was filed out of time in the Kansas City Court of Appeals. (3 The writ should be quashed for want of abstract of record. State ex rel. Pedigo v. Robertson, 181 S.W. 987. (4) Because the opinion of the Court of Appeals is not in conflict with any former opinion in any case decided by this court. (5) Because Judge McCune, as a substitute judge, was at least a de facto judge in the absence of any objection by relator after signing the stipulation and before the opinion was written, and the further fact that relator in his motion for rehearing did not suggest lack of jurisdiction by Judge McCune. Objections, if any, should have been made and called to the attention of the court before the final disposition of the same in the Court of Appeals. (6) Because no abstract of the record being supplied as required by rules of court there is nothing to indicate the subject-matter in controversy. Rules 13, 33, 34, 35, of this court. (7) After the signing of the stipulation, and before the hearing by the court, or at any time even before the decision, if relator had made objections to Judge McCune, whether justly or not, he no doubt would have declined to sit in the case. An estoppel should be successfully invoked against the relator. Parties cannot enter into a sacred agreement in writing to call or agree upon a substitute or special judge where good and sufficient reasons are assigned for such action, and then if defeated declare or attempt to declare such agreement void. It is an estoppel, a waiver and against public policy to so deal with the court. State v. Gilmore, 110 Mo. 4; Field v. Mark, 125 Mo. 514; Kimball v. Penney, 117 Ala. 245; City of Oakland v. Hart, 129 Cal. 98; Schlungger v. State, 113 Ind. 295; Greenwood v. State, 116 Ind. 485; Love v. Jones, 189 Ind. 390.

Walker, C.J. Graves, J., concurs; White, J., concurs in a separate opinion, in which Ragland, J., concurs; Blair, J., dissents in a separate opinion in which Atwood, J., concurs; Gantt, J., not sitting.

OPINION

WALKER

This is an original proceeding by certiorari to quash the record of the Kansas City Court of Appeals in the case of W. J. C. Allen v. Lloyd Best et al., which was a suit to determine the ownership of certain shares of stock in a corporation named therein.

Upon a trial in the circuit court a judgment was rendered in favor of the defendants. An appeal was thereupon perfected to the Court of Appeals. When the case came on for hearing Judge Trimble of the Court of Appeals was ill and Judge Arnold disqualified himself as having formerly been of counsel for the plaintiff. The parties litigant thereupon entered into a stipulation by which they agreed to the selection of Judge Henry L. McCune, a member of the Kansas City Bar, to sit as a special judge with Judge Bland in the hearing and determination of the case. Judge McCune consented to perform the duties of a special judge as stipulated by the parties. The case was heard before Judge Bland and Judge McCune, sitting as judges, and was assigned to the latter to prepare an opinion therein; the opinion submitted and adopted affirmed the judgment of the circuit court. After the overruling of his motion for a rehearing the plaintiff -- relator -- sued out this writ, alleging that the court, as attempted to be organized by the selection of Judge McCune as a special judge, was without jurisdiction to hear and determine the case submitted and in ruling to the contrary it contravened the decision of this court in Ladd v. Forsee, 163 Mo. 506.

The many irregularities in the presentation of the application for this writ are sufficient, under ordinary circumstances, to authorize its denial. Despite these irregularities the question of the Court of Appeals' jurisdiction as attempted to be exercised in the disposition of the original case is one demanding determination.

We will first consider the purely technical objections which may be urged to the issuance of the writ.

I. It may be admitted that the relator did not, according to the letter of our Rule 34, cite Ladd v. Forsee, 163 Mo. 506, as having been contravened by the ruling of the Court of Appeals as attempted to be created by the action of one of its judges. Relator did, however, specifically allege the illegality of the court's actions as thus constituted as one of the grounds for the issuance of the writ and in his suggestions in support of his petition he urged that the court in thus proceeding contravened our ruling in the Ladd case. This was sufficient. The prime purpose of the constitutional provision authorizing a review by this court of the rulings of the courts of appeals is for the purpose of harmonizing their decisions with those of the Supreme Court, or more briefly put, to eliminate conflicts in rulings. This being the dominant purpose of the power conferred, we are not and should not be limited to the cases cited by a relator constituting the sole ground of conflict. Such a construction of our Rule 34 would, in many instances, defeat the purpose of the constitutional provision authorizing a review of the opinions of the courts of appeals, as it not infrequently occurs in determining the existence of a conflict that cases not cited by the relator are held to be determinative of his contention. [State ex rel. Mo. Gas & Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Shawhan v. Ellison, 273 Mo. 218; State ex rel. Gordon v. Trimble, not reported.] Illustrations of this character are found where the relator has not cited the last controlling opinion of this court but has cited earlier cases. In fact we have entertained jurisdiction in cases where the allegations in regard to a conflict were specific only as to the character of same and the rulings relied on to support the relator's contention were not set forth in his petition but in his suggestions in support of the latter. Neither reason nor authority can therefore be properly invoked to sustain a contention that this case should be permitted to ride off on the ground that Ladd v. Forsee was not cited by the relator in his petition.

Under the rule of limitation adopted by this court in the Berkshire case, 287 Mo. 654, the application for this writ was not made within the time therein limited. It may be sufficient to say that so far as applicable to this case the question as to the timeliness of the relator's application was foreclosed by the issuance of the writ herein. The importance of a judicial determination of the question here involved constitutes a sufficient reason for the court's action in this regard and is ample to sustain the propriety of the court's action. A more deliberate examination of this record as disclosed by the Court of Appeals' opinion but tends to confirm the correctness of our ruling in granting the writ despite the limitation in the Berkshire case.

II. Under the State Constitution, each of the courts of appeals is required to consist of three judges, two of which shall constitute a quorum. [Sec. 3, Amdt. Const. 1884; Sec. 14, Art. 6, Const. Missouri.] In the case of a vacancy in any judicial position the Constitution provides that it may be filled in the manner provided by law. [Sec. 32, Art. 6, Const. Missouri.] While ample provision is made in the Constitution and the statute for the filling of vacancies in the office of circuit judge, in neither the Constitution nor the statute is there to be found a provision for the selection of a special judge in a case pending in a court of appeals, except where the judges sitting are equally divided in opinion, [Sec. 11, Art. 6, Const. Missouri.] It is axiomatic that judicial power can only be conferred upon a court or a person by the authority of the law. Where, therefore, a court, as at bar, is unable to perform its judicial functions through a lack of the requisite number of judges to constitute a quorum, the parties litigant cannot remedy the defect and set the wheels of judicial machinery in motion by the selection of judges to fill the vacancies. The act of the parties in their attempt to confer judicial power being futile their consent to the selection of judges, regardless of its form, will not estop them from denying the jurisdiction of the court. There can be no waiver where a court is without power to hear and determine the facts. [Jones v. Sanderson, 287 Mo. l. c. 183.]

More concretely stated, upon Judge Arnold becoming recusant by his own plea, he bereft himself of power to act with Judge Bland in the selection of a special judge. If disqualified for one purpose he became...