The State ex rel. Davis v. Ellison
| Decision Date | 25 January 1919 |
| Parties | THE STATE ex rel. SAMUEL DAVIS, Circuit Judge, et al., v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Record quashed.
Robert M. Reynolds, Charles Lyon and Horace F. Blackwell for relators.
(1) This court will, by certiorari, review and quash the judgment and opinion of a Court of Appeals in any cause, wherein it appears that such court, in reaching and rendering such judgment and opinion, failed to follow the last previous decisions of this court upon any question of law or equity arising therein. State ex rel. v. Broaddus, 238 Mo 189; State ex rel. v. Ellison, 256 Mo. 644; State ex rel. v. Reynolds, 257 Mo. 19; State ex rel. v. Robertson, 264 Mo. 661; State ex rel. v Reynolds, 265 Mo. 88; State ex rel. v. Ellison, 266 Mo. 604; State ex rel. v. Ellison, 268 Mo. 225. (2) This rule applies in cases of original writs and proceedings in such Courts of Appeal, as well as in other cases. The object of the rule is to secure harmony and uniformity in opinion. Ex Parte Conrades, 185 Mo 411; State ex rel. v. Robertson, 264 Mo. 661; State ex rel. Crockett v. Ellison, 271 Mo. 416. (3) The Court of Appeals had no right to appoint a commissioner to hear evidence and determine therefrom for itself as to the residence of Birdie Taubman, or other question of contested fact, involved in the plea pending in the Lafayette Circuit Court, and by its writ of prohibition supplant its judgment thereon for the judgment of the Lafayette Circuit Court on such question. It had no jurisdiction to consider and determine any of the evidence of contested facts, by the determination of which it was to be determined whether the Lafayette Circuit Court had jurisdiction of the action brought therein, and had no right or jurisdiction to interfere with the Layfayette Circuit Court in its hearing and determination of the facts relating to its jurisdiction. The jurisdiction to hear and determine such facts was lodged alone in the Lafayette Circuit Court. The remedy afforded for an erroneous judgment thereon by said court was by appeal therefrom. State ex rel. v. Withrow, 108 Mo. 7; State ex rel. v. Mills, 231 Mo. 500. (4) The suit in the Adair Court was not such a suit as might be set up in the answer in the suit in the Lafayette Court in abatement thereof as another suit pending between the same parties for the same cause. The defense of a prior suit pending applies only when the plaintiff in both suits is the same person and both are commenced by such plaintiff, and not to cases where there are cross suits and plaintiff in one is defendant in the other, because it cannot be said that either is prosecuting two actions against the other within the rule in question. Rodney v. Gibbs, 184 Mo. 10; Long v Coal Co., 233 Mo. 734; Pocoke v. Peterson, 256 Mo. 514. (5) Birdie Taubman could only have become a resident of Adair County, Missouri, by having acquired a residence or abode therein with intent to remain there and make it her home in the future for an unlimited period of time. Mere physical presence in a county with the intention of remaining is not sufficient. There must have been an actual residence and domicile acquired, with the intention accompanying. State ex rel. v. Shepard, 218 Mo. 656. (6) There is a difference between commencing a suit and acquiring jurisdiction to proceed to judgment. Jurisdiction means the right to hear and determine. State ex rel. v. Withrow, 108 Mo. 1. And in order to have the right to hear and determine there must be control of both the subject-matter and the parties. Jurisdiction over subject-matter is confessed or fixed by law, while jurisdiction over the person is had by service of process, Fithian v. Monks, 43 Mo. 515; State ex rel. v. Cave, 272 Mo. 653; State ex rel. v. Holtcamp, 245 Mo. 666. A failure to show service of process may show absence of jurisdiction. State ex rel. v. Barnett, 245 Mo. 115; McMahon v. Hubbard, 217 Mo. 644; Charles v. White, 214 Mo. 187; Gray v. Bowles, 74 Mo. 419. Jurisdiction in no case is complete or acquired without jurisdiction of both the subject matter and the parties, and when both have been secured, then the right to proceed, hear and determine exists, and jurisdiction exists and does not exist until then.
Campbell & Ellison, and Aull & Aull for respondents.
(1) The question for determination is, "has the Court of Appeals, upon the facts, in applying the law contravened prior established rules of law announced by the Supreme Court?" State ex rel. v. Ellison, 271 Mo. 423; State ex rel. v. Ellison, 269 Mo. 156; State ex rel. v Reynolds, 265 Mo. 93; State ex rel. v. Ellison, 263 Mo. 515; State ex rel. v. Ellison, 256 Mo. 666. (2) The writ of certiorari was improvidently issued. The record shows no ruling of respondent judges which conflicts with, or wherein they failed to follow, controlling decision of this court on a question of law or equity in the case. Neither the facts alleged in the application for the writ, nor the facts in the record authorize the relief prayed. (a) Unless there be conflict the judgment may not be annulled. State ex rel. v. Robertson, 262 Mo. 538; State ex rel. v. Smith, 176 Mo. 90; State ex rel. v. Reynolds, 268 Mo. 210. (b) The opinion of respondent judges in holding that the suit in Adair County might be interposed in abatement of the suit pending in the Lafayette Circuit Court did not conflict with any ruling of this court in any of the following cases: Warder v. Henry, 117 Mo. 530; Rodney v. Gibbs, 184 Mo. 10; Long v. Company, 233 Mo. 734-5; Pocoke v. Peterson, 256 Mo. 501; Jacobs v. Lewis, 47 Mo. 346. (c) The opinion in holding that the writ of prohibition would lie notwithstanding a plea in abatement involving contested facts was pending in the Lafayette Circuit Court did not conflict with any ruling of this court in any of the following cases. State ex rel. v. Withrow, 108 Mo. 7; State ex rel. v. Mills, 231 Mo. 500. (d) The opinion in holding that Birdie Taubman at the time she filed her suit in the Adair Court was a resident of Adair County did not conflict with any ruling of this court in any of the following cases: State ex rel. v. Shepard, 218 Mo. 656. (e) The court in holding that the Adair Court acquired and absorbed the jurisdiction of the divorce controversy and that the Lafayette Circuit Court had no right to proceed, did not conflict with any ruling of this court in any of the following cases; Fithian v. Monks, 43 Mo. 515; Charles v. White, 214 Mo. 208; McMahan v. Hubbard, 217 Mo. 644; State ex rel. v. Barnett, 245 Mo. 666; State ex rel. v. Cave, 199 S.W. 1018. A court with jurisdiction rightfully acquired supplanted by a co-ordinate court, each asserting jurisdiction of the same cause, absent the judicial comity and courtesy demanded by all proper jurisprudence, in the conflicting court, each determining for itself not only the legality of its own jurisdiction but the illegality of that of the co-ordinate tribunal with which it is in conflict, with the accompanying delays, expense, chaos, confusion, vexation and oppression, grinding a litigant between the upper and nether mill stones of jurisdiction and process, and no remedy -- this, it is respectfully submitted, was not the ruling of those cases, has never been and is not the law in Missouri or elsewhere. State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Williams, 221 Mo. 268; State ex rel. v. Bright, 224 Mo. 514; Wells v. Montcalm, Judge, 141 Mich. 58; McLean v. Wayne, Judge, 52 Mich. 258; Farmers Loan Co. v. Company, 177 U.S. 57. (3) When the relator, Taubman, filed his petition in, and the relator, Judge Davis, permitted him to proceed in the Lafayette Circuit Court, the Adair Circuit Court had jurisdiction. Birdie Taubman had filed her petition in the Adair Circuit Court, writ of summons was immediately issued directed and forwarded to the sheriff of Lafayette County to be served on Edwin M. Taubman, fees for service accompanied the writ, summons served December 20, 1915, on Edwin M. Taubman, personally, which related back to the date of the writ giving the Adair Circuit Court jurisdiction not only over the res (status) but also the person. When the jurisdiction of the Adair Circuit Court was so invoked, accepted and proceeded with no court of co-ordinate jurisdiction should, if it would, interfere with or frustrate the proceedings in or supplant the jurisdiction of the Adair Circuit Court. If it did, prohibition was the proper, orderly and efficacious writ to check and restrain. (a) The statute, Sec. 1756, R. S. 1909, provides that a suit is deemed commenced by "filing the petition and suing out thereon a writ of summons against the person of the defendant." Knisely v. Leathe, 256 Mo. 364; State ex rel. v. Broaddus, 245 Mo. 137; State ex rel. v. Wilson, 216 Mo. 292; Gosline v. Thompson, 61 Mo. 471; Lumber Co. v. Wright, 114 Mo. 326; McGrath v. Railroad, 128 Mo. 9; Ex Parte Munford, 57 Mo. 603; Spurlock v. Sproule, 72 Mo. 503; Fenwick v. Gill, 38 Mo. 510; State ex rel. v. Tracy, 237 Mo. 109; Railroad Co. v. Wear, 135 Mo. 256; State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Bradley, 193 Mo. 330; State ex rel. v. Bright, 224 Mo. 514; State ex rel. v. Eby, 170 Mo. 497; Moore v. Ruxlow, 83 Mo.App. 51; Becker v. Stroeher, 167 Mo. 306; Holloway v. Holloway, 103 Mo. 283; Lumber Co. v. Wright, 114 Mo. 326. (b) The filing of the petition in the Circuit Court of Adair County was the institution of a suit and gave that court jurisdiction from that very instant, although the summons was not served for two or three days thereafter. Sec. 1756, R. S. 1909. Suit is begun the moment petition is filed. First National Bank v. Griffith, 182 S.W. 805; Matthews v. Stephenson, 172 Mo.App. 228; State v. Wilson, 216 Mo. 292; South Missouri Lumber...
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