Wilden v. McAllister

• Decision Date: 23 December 1903
• Citation: 178 Mo. 732,77 S.W. 730
• Parties: WILDEN v. McALLISTER.
• Court: Missouri Supreme Court

77 S.W. 730

178 Mo. 732

WILDEN v. McALLISTER.

Supreme Court of Missouri, Division No. 1.

December 23, 1903.

SUPREME COURT — COURT OF APPEALS — CERTIFICATION OF CASES — JURISDICTION.

1. Const. art. 6, as amended by Const. Amend. 1884, § 6, provides that, when any one of the Courts of Appeals shall render a decision which any one of the judges sitting therein shall deem contrary to any decision of any one of said Courts of Appeals or of the Supreme Court, the Court of Appeals must certify the case to the Supreme Court. Held, that where the judges of a Court of Appeals unanimously deemed a decision in conflict with a decision of the Supreme Court, such section did not authorize the certification of the case to the Supreme Court, but that it was the duty of the Court of Appeals to set aside its ruling, and conform such ruling to that of the Supreme Court.

2. Such provision did not authorize the certification of a case to the Supreme Court where all of the judges of the Court of Appeals deemed its decision contrary to a prior decision of the Court of Appeals, it being their duty under such circumstances to overrule the prior decision.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Action by Henry Wilden against Alexander McAllister. From a judgment in favor of plaintiff, defendant appeals on certificate from the St. Louis Court of Appeals. Case remanded.

Frank A. C. MacManus, for appellant. Arthur E. Kammerer, for respondent.

MARSHALL, J.

This case was certified to this court by the St. Louis Court of Appeals because all of the judges of that court deemed that its opinion in this case is in conflict with the decision of that Court of Appeals in the case of Beck v. Haas, 31 Mo. App. 180. Section 6 of the amendment of 1884 to article 6 of the Constitution provides that: "When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pending the same term and not afterward, certify said cause or proceeding and the original transcript therein to the Supreme Court," etc. But this furnishes no authority for the action of the Court of Appeals in certifying this case to this court. No one of the judges of that court deemed the opinion of that court in this case to be in conflict with the decision of that court in the...