The State ex rel. Curtis v. Broaddus

• Decision Date: 16 December 1911
• Citation: The State ex rel. Curtis v. Broaddus, 142 S.W. 340, 238 Mo. 189 (Mo. 1911)
• Parties: THE STATE ex rel. W. ESPY CURTIS v. BROADDUS et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

142 S.W. 340

238 Mo. 189

THE STATE ex rel. W. ESPY CURTIS v. BROADDUS et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

December 16, 1911

Writ awarded.

R. F Porter for relator.

In the first trial of this case the circuit court sustained a demurrer to plaintiff's evidence, holding that the facts constituted no cause of action. The Supreme Court on appeal reversed this and directed the trial court to proceed to try the case in accordance with this opinion, which the lower court did. The court of appeals to which the case was sent on second appeal on substantially the same evidence in all respects, by a different construction of the same evidence held that the lower court erred in submitting the case to the jury and reversed the case without remanding. These decisions are in direct conflict. Curtis v. Sexton, 201 Mo 217; Curtis v. Sexton, 142 Mo.App. 179. The point on which the Court of Appeals reversed the case, namely, because a deed was not tendered or offered to be tendered on the exact date named in the contract, October 6, 1890, was directly raised on the former appeal to the Supreme Court and was res adjudicata. Gracy v. St. Louis, 221 Mo. 1. But regardless of whether it was directly raised in the former appeal it was concluded by the judgment on demurrer to the evidence. The one question before the Supreme Court was whether the court committed error in sustaining a demurrer to the evidence. This concluded all questions raised or which could have been raised to show to the contrary, and that question was res adjudicata on all subsequent proceedings on substantially the same evidence as here. Bealy v Smith, 158 Mo. 515; May v. Crawford, 150 Mo 524; Masterson v. Railroad 58 Mo.App. 572; Dunn v. Nicholson, 125 Mo.App. 725; Crecilius v. Bierman, 68 Mo.App. 34; Glover v. Hominy Co., 76 Mo.App. 103. And the Supreme Court having reversed the case holding that plaintiff's evidence entitled him to go to the jury and having directed the trial Court to proceed in accordance with that opinion, the Court of Appeals cannot overrule the Supreme Court and convict the trial court of error for obeying that direction and submitting the case on the same evidence. Viertel v. Viertel, 212 Mo. 575; Berkey v. Thompson, 126 Iowa 394; State v. Newkirk, 49 Mo. 472; Baker v. Railroad, 147 Mo. 152. The Court of Appeals held that on account of the fact that plaintiff did not tender a deed on the exact date mentioned in the contract, October 6, 1890, or offer to tender it on that date, he could not recover, holding time the essence of the contract. The Supreme Court on the other hand held that under the facts detailed in evidence the tender made on December 1 was sufficient and time was not the essence of the contract as to tender of deed, notice of his election having been given prior to October 6, 1890. The Supreme Court decision is evidently in accord with the authorities and right on this proposition, and the Court of Appeals in error. Time was the essence only as to the notice. Bales v. Roberts, 189 Mo. 65; Scannell v. American Soda Fountain, 161 Mo. 621; In re Mason, Trustee, v. Payne, 47 Mo. 517; Lumaghi v. Abt, 126 Mo.App. 221; Pomeroy on Contracts (2 Ed.), 433, sec. 360; Hunt on Tender, secs. 12, 15; Irvin v. Bleaksley, 67 Pa. St. 24; Laird v. Smith, 44 N.Y. 618; Augsberg v. Meredith, 101 Ill.App. 639; Townsend v. Tufts, 95 Cal. 257; Smith's Appeal, 69 Pa. St. 481; Byres v. Denver, 13 Colo. 552. But regardless of whether the decision was right or wrong, it is the law of the case, and must govern all subsequent proceedings and the trial court and the Court of Appeals are bound by it and the court will not allow the question of plaintiff's prima facie case to be again litigated on substantially the same record. Atty.-Gen. ex rel. v. Lum, 2 Wis. 507; Hayward v. Smith, 187 Mo. 475; Mowry v. Norman, 223 Mo. 463; Meriwether v. Publisher, 224 Mo. 624; Roth Tool Co. v. Spring Co., 146 Mo.App. 1; Haas v. Multigraph Co., 158 Mich. 508; Blades v. Railroad, 123 N.W. 1058; Jackson v. Railroad, 84 S.C. 296. The record of the Supreme Court was the proper source to secure the facts in evidence in the former trial and the opinion of the court not competent evidence to establish what the facts were in that case. Peltz v. Bollinger, 180 Mo. 252; Priddy v. Boice, 201 Mo. 339; Cullen v. Higgins, 138 Ill.App. 168; Drayton v. Nells, 1 Nott & McCord, 409; Hart v. Bank, 27 S. R. 926; Donellen v. Hardy, evidence and the Court of Appeals had no greater authority to have disregarded the opinion of the Supreme Court and dismissed plaintiff's case again on the same evidence and the court of appeals had no greater authority in this respect than the trial court. An appeal cannot confer upon the appellate court a jurisdiction which the court a quo did not possess. Baker v. Chrisholm, 3 Tex. 157; Abernathy v. Moore, 83 Mo. 65; State ex rel. v. Smith, 188 Mo. 180. The Supreme Court having decided that plaintiff had a prima-facie case and having sent the case back to the trial court with instructions to retry the case in accordance with its opinion, this was binding on the trial court and the Court of Appeals on substantially the same record as here, and the Court of Appeals exceeded its jurisdiction and acted in excess of its authority and illegally in reversing the circuit court and holding the plaintiff had no cause of action on the same record that was before the Supreme Court and on which that court held plaintiff had a cause of action. That question was no longer open to either the trial court or the Court of Appeals. And the proper method to correct the error of the Court of Appeals is the issuance of its remedial writ by the Supreme Court under its supervisory control over inferior courts given by the Constitution and the writ should be maintained, the judgment of the Court of Appeals set aside and the judgment of the circuit court affirmed. Edgar v. Greer, 14 Iowa 211; Berkley v. Thompson, 126 Iowa 394; State ex rel. v. Smith, 176 Mo. 90; State ex rel. v. Smith, 188 Mo. 180; State ex rel. v. Bayha, 97 Mo. 331; State ex rel. v. Nortoni, 201 Mo. 1; State ex rel. v. Dawson, 99 Mo. 222; State ex rel. v. Basket, 164 Mo. 440; State ex rel. v. Railroad, 172 Mo. 446; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Foster, 225 Mo. 171; State ex rel. v. Woodson, 161 Mo. 444; State ex rel. v. Dearing, 173 Mo. 492; State ex rel. v. Smith, 177 Mo. 69; State ex rel. v. Williams, 221 Mo. 227; Thomas v. Mead, 36 Mo. 232. The trial court properly held that defendant had made no defense and having contracted as principal he was bound as such. Carr v. Card, 34 Mo. 513; State ex rel. v. Williams, 77 Mo. 468; Layson v. Cooper, 174 Mo. 220; Visitation Convent v. Kleinhoffer, 76 Mo.App. 661; Bank v. Wells, 98 Mo.App. 581. The cases of Curtis v. Sexton, 201 Mo. 217, and Curtis v. Sexton, 142 Mo.App. 179, are in direct conflict, holding directly the opposite on the same evidence and the construction of the same documents. When the Supreme Court had passed on the question of whether plaintiff had a case to go to the jury or not he had a right to rely on that, and an inferior court should not be allowed to hold otherwise on the same record. And the Supreme Court through its remedial writ should set aside the judgment of the Court of Appeals, and as the record shows that no other judgment could be rendered except that which was rendered in the lower court, a judgment for plaintiff, and as this is the third time the case has been to the Supreme Court, and it has been tried twice in the circuit court, and once in the Court of Appeals, and as is said in Gracy v. St. Louis, supra, "There must be an end to a law suit," the court should set aside the judgment of the Court of Appeals and affirm the judgment of the trial court or direct the Court of Appeals to do so; and we ask that this be done. Gracy v. St. Louis, 221 Mo. 1; State ex rel. v. Smith, 176 Mo. 90.

A. F. Evans for respondents.

(1) The Kansas City Court of Appeals had jurisdiction of the case and proceeded within its constitutional authority. Constitution sec. 6, art. 6; R. S. 1909, sec. 2083; State ex rel. v. Smith, 173 Mo. 398; Railroad v. Smith, 154 Mo. 300; State ex rel. v. Broaddus, 207 Mo. 107; State ex rel. v. Dobson, 135 Mo. 1; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Baker, 170 Mo. 383; State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Rombauer, 125 Mo. 632; Bank v. Woesten, 144 Mo. 407; Zellars v. Surety Co., 210 Mo. 86; Smith v. Railroad, 143 Mo. 33; Clark v. Railroad, 179 Mo. 66. (2) The alleged error which this court is petitioned to correct by this writ, is that the opinion rendered by the Kansas City Court of Appeals in the case of Curtis v. Sexton, reported in 142 Mo.App. 179, on an appeal by the defendant from a judgment against him, at the second trial of the case, is in conflict with the opinion of this court rendered in that case, in October, 1906, and reported in 201 Mo. 217, on an appeal by plaintiff from a judgment sustaining a demurrer to his evidence at the first trial. Curtis v. Sexton, 142 Mo.App. 179. (3) The record before the Supreme Court on the first appeal is not, by any means, "substantially the same" as the record before the Court of Appeals on the second appeal. They are essentially different records. (4) The case was not tried, at the second trial, even by counsel for plaintiff, on the theory that this court had adjudged that plaintiff by his alleged letters to Bracking, or to defendant, dated in September, 1890, accepted the offer to repurchase the land, or that said letters were notice of such acceptance. The trial court did not hold any such theory and the case was not tried or submitted in the trial court on any such theory. (...