1 Mo. App. 520 | Mo. Ct. App. | 1876
Lead Opinion
delivered the opinion of the court.
It appears from the record before us that Blanchard sued'. Wolff for the conversion of certain personal property; that, Wolff denied the conversion and set up new matter, to which. Blanchard replied ; that a trial was had, at which Blanchard became nonsuit; that he filed a motion to set the nonsuit, aside, which the court overruled; and that he presented, and the court signed, a bill of exceptions which omitted to set. forth the motion to set the nonsuit aside, and failed to save an exception to the action of the court overruling the-motion; that the court in general term reversed the judgment of the court at the special term; that the defendant, Wolff, filed a motion for rehearing, and that this motion was-overruled by the court in general term. Thus far we are able-to go, but here we are obliged to stop. There is no .appeal in this case which authorizes us to “ hear and determine ’ ’ the matters which have been argued, and argued with ability, by the counsel for appellant. Obviously there is no final judgment in the cause. Plaintiff took a nonsuit with leave,, etc. The refusal of the court at special term to set this, nonsuit aside was final as to him. He properly went to the general term to get rid of this judgment. When the general term reversed the judgment of the special term, thenonsuit was set aside and the cause reinstated. It stood for trial de novo. Clearly there was no final judgment, and it is only from “ final judgments ” that an appeal is allowed by the general law. 2 Wag. Stat. 1059, sec. 9. But an appeal is allowed from the judgments of the St. Louis
Rehearing
delivered the opinion of the court on motion for a rehearing.
Our opinion in this case was founded on the construction we gave to the acts organizing the St. Louis Circuit Court, under the Constitirtion of 1865, and the several acts since-passed prescribing the practice therein. In their motion for a rehearing, the counsel for appellant urge that these-acts are materially modified by the act of February 28,. 1871. We state briefly our reasons for overruling this-motion, founded, as we conceive it to be, upon a misconception of these statutes.
The acts which ascertain the practice in the St. Louis Circuit Court are dated, respectively, December 19, 1865» February 25, 1869, and March 4, 1869. The last two dates
The title of the act of December 19, 1865, is : “ An act to provide for the reorganization of the St. Louis Circuit •Court, and regulate proceedings therein.” It is hardly necessary to recall to the memory of the bar that prior to "the Constitution of 1865 there were three courts of civil jurisdiction in St. Louis county, to wit, the Circuit Court, the Court of Common Pleas, and the Land Court; that the «object of the Constitution of 1865 was to abolish the last •two, and to introduce, in respect of the Circuit Court of .St. Louis county, a system of practice in imitation of that adopted in New York and Ohio — creating for' the Circuit 'Court a special and a general term, and making the latter, an effect, an appellate court. This was all foreign to the practice which had for more than sixty years prevailed in Missouri. At the same time, for the rest of the State, District Courts, a system of intermediate appellate courts "between the Circuit Court and the Supreme Court, were ■established. In order to give full effect to the constitutional requirements, some legislation was necessary; and "this, as far as St. Louis was concerned, was furnished by the act of December 19, 1865. This act referred to St. Louis county only, and was, therefore, of a local and special nature. In the rest of the State, provision was also made by law for the establishment of District Courts. and the practice therein. There was no District Court in St. Louis, nor was any case tried in this county liable to be reexamined ¡by a District Court. In the rest of the State, on the other hand, the distinction between special and general term of rthe Circuit Court was unknown.
The new practice was, from the first, disrelished by the bar of Missouri; but organic reforms were needed to get rid ■of its most objectionable features. In 1869, however, legislation was obtained which was certainly a considerable alie
Thus stood the law when, in 1870, a constitutional amendment was adopted, enabling the General Assembly to sweep away the whole system of District Courts, which had become very odious to the bar and people of Missouri. Accordingly provision was made for taking cases, by writ of error or appeal, directly from the Circuit Court to the Supreme Court. Now, this had always been done in St. Louis, for there the District Court had never existed. Hence, St. Louis was not within the remedy, as it was not. subject to the evil for which this act was intended. The
Turning to the acts repealed, we find that chapter 135 ■concerned practice in the District Courts. These being abolished by constitutional amendment, the act regulating practice in them was mere rubbish, and was thus swept away. The same remark applies to the act to amend section 9 of chapter 172 of title 34, General Statutes. All the rest of the act was directed to the practice in the Supreme Court, and to taking cases there by writ of error •or appeal from final judgments rendered by the Circuit ■Courts, and only in the case of final judgments. The examination of the meaning of this term, however, is unneces•sary. What we have to remark here is that this act had no relation to the practice in the St. Louis Circuit Court, where the special and general terms were still existing, as well as the practice in respect of them provided by the act •of 1869. No more than a glance is necessary to prove this. If the construction contended for by appellant’s counsel were sound, an appeal would have lain directly, at any time .after February 28, 1871, from a final judgment in the St. Louis Circuit Court, at special term, to the Supreme Court. In other words, that act would have abolished the general term, which it could only have done by repealing the 15th .section of Article 6 of the Constitution.
This is one answer, and we presume a sufficient one, to the ¡suggestion that the act of February 28, 1871, repealed the act of February 25, 1869, in respect of such appeals as are the subject of that last-named act. It was in the most -express terms provided that * ‘ no appeal provided for in this section” should be allowed, except under certain enu
.The argument seems to us to be complete; but there is further confirmation of it drawn from the terms of the act of 1869 itself. The point made by the counsel moving for .a rehearing is that the judgment of reversal rendered in •this case by the general term was a “final judgment.” We are aware that the Supreme Court has given an interpretation to the term, as used in the acts of 1865 and 1871, which may include judgments of reversal and remander. But both the rule and the reason of that interpretation fail of ■application to a statute which is careful to discriminate between “ final judgments ” and “judgments not final,” and which expressly places judgments of reversal and remander in the latter category. The act of February 25, 1869, provides (sec. 2) for appeals “from an award of a new trial, ;and from any judgment rendered or decree or order made at general term, reversing or modifying a judgment rendered •or decree or order made at special term, in the same manner and with the Wee effect as provided for by law in respect ■to [q/] appeals from final judgments rendered by the said court at general term.” What is this but declaring that such Judgments at general term, reversing, etc., are not “final Judgments,” though they are, in respect of direct appeals to the Supreme Court, treated as if they were such? Here is an intei’pretation of the act “ ex visceribus statuti,” which Lord ‘Coke tells us, is “ optima interpretation or, in the wox-ds
Whether the Supreme Court has in any instance taken cognizance of a case purporting to be brought before it by-appeal from such a judgment of the St. Louis Circuit Court at general term as this record discloses, where the statutory-prerequisites of such an appeal have been disregarded, we-are not called on to determine. We are pretty sure, from an examination of all the cases cited, that the point now before us has never been brought to the attention of the-Supreme Court. Therefore, even if it should appear that-the Supreme Court had in any case accepted the submission
No other matter seems to require remark in the motion and reasons for a. rehearing, and the motion is accordingly overruled,
