Curtis v. Sexton

252 Mo. 221 | Mo. | 1913

Lead Opinion

FARIS, J.

Plaintiff sued in the circuit court of Jackson county, to recover money which he claims to be due him under a written contract between himself and the partnership of which the defendant was a member. Plaintiff does not plead the contract by its legal effect, but sets it out in full in his petition, and alleges that defendant has broken the same.

This case has enjoyed a long and varied legal career. The facts npon which it is bottomed need not he set out here at length, since the case has been considered here once npon its merits,- as will be seen by a reference to it under the style of Curtis v. Sexton, 201 Mo. 217, the point involved in the case then being whether there was sufficient evidence adduced by plaintiff in the trial below, to take the case to the jnry. In the court below a demurrer to the evidence of plaintiff had been sustained. This court held that there was sufficient evidence to take the case to the jury, and thereupon reversed it. It was again tried on the 14th day of May, 1908, in the circuit court of Jackson county; the issues found for plaintiff, and a judgment rendered against defendant for the sum of $4543.75. Thereupon defendant, on the 6th day of November, 1908, was granted an appeal to this court in due form. By the further order of the circuit court appellant (whom we will style for convenience, defendant) was given, as the solemn records of that court show, until January 3, 1909, within which to file his bill of exceptions. He did not file the same within this time, but on the 12th day of January, 1909, came into the circuit court and filed his motion for an order nunc pro tunc to correct an alleged error in the record as to the time given him in which to file his said bill, setting forth in his motion that the order, as made by the court, gave him till the “third day of the January term, 1909; ’ ’ but that by the error and misprision of the clerk in entering the order of the court, the same was erroneously made to read the “third day of January, 1909.” In support of his motion defendant offered the affidavit of his counsel, in substance and to the effect that the order as actually made by the court recited the “third day of the January term, 1909,” as the limit of time to file his said bill, and that his said counsel on returning to his private law office caused an entry to be made by one G. V. Hucke, the law clerk of defendant’s counsel, to tlie above effect. Defendant also offered the affidavit of said Hucke who corroborated the affidavit of counsel touching the latter’s direction to him and as to the contents of the entry made by Hucke under the directions of counsel upon the private office docket of counsel.

There was also offered the minutes of the clerk as taken down by him at the time of the making of the order, as well as the formal record entry of said order in the circuit court records. Both the minutes and the solemn record show that the order expired on the third day of January, 1909, and not on the third day of the January term, 1909.

It is but fair to say, that when the above affidavits were offered and upon objections of plaintiff’s counsel being lodged against the same, the trial court remarked that “he did not see how the affidavits helped defendant,” to which counsel for defendant replied, “except to show diligence.” Nothing else in the nature of evidence was offered to sustain the motion for a nunc pro tunc entry, but said motion was sustained by the court upon this showing, and further extension of time was granted. Other- extensions were subsequently made, carrying forward the time to file the bill of exceptions till July 24, 1909, on which latter date the bill of exceptions was actually' filed. Plaintiff (who is respondent here) duly took and filed his term bill of exceptions to the action of the court in' granting the nunc pro tunc order above mentioned. Neither the bill of exceptions nor the abstract of the record as filed here by defendant contains the evidence upon which the trial court was induced to make the nunc pro tunc'order; the defendant contenting himself with setting forth the original order as made, together with the nunc pro tunc order correcting the original order and extending the time to file. The plaintiff has, however, brought up in his additional abstract of the record all of the evidence taken by the court in this behalf, as well as all other matters and things pertaining thereto.

Pending the appeal in this court, the jurisdiction of the several courts of appeals was changed, increasing their jurisdiction as to amount involved, to $7500; thereupon, and on the 13th of October, 1909, this cause was by this court transferred to the Kansas City Court of Appeals. It was heard in the Kansas City Court of' Appeals, and on the 25th day of January, 1910, pursuant to an opinion filed in that court, it was in all things reversed. Again the facts are fully set out, as will be seen by reference to the case of Curtis v. Sexton, 142 Mo. App. 179. Thereafter, and on the 11th day of October, 1910, plaintiff filed his petition in this court for a preliminary rule in certiorari, which was granted by this court on January 11, 1911. This rule was made final by a judgment of this court, pursuant to opinion filed December 16, 1911, and the judgment theretofore rendered by the Kansas City Court of Appeals was quashed, and the latter court was ordered and directed to proceed to hear and determine said cause in accordance with the opinion of this court as contained in the case of Curtis v. Sexton, 201 Mo. 217. The opinion of this court, which also contains the facts in this cause, will be found reported under the style of State ex rel. Curtis v.' Broaddus, 238 Mo. 189.

Thereafter on the 6th day of February, 1912, plaintiff filed his motion in the Kansas City Court of Appeals to transfer this cause back to the Supreme Court, because of the provisions of the- Act of March 30, 1911. [Laws 1911, p. 190, amending Sec. 3937, B. S. 1909.] This motion was by the Kansas City Court of Appeals sustained and that court ordered the cause to be re-transferred to this court and the same is accordingly here.

There have been filed in this case since it was first decided by this court in 1907, more than a quarter of a hundred motions, and suggestions, and counter suggestions, and suggestions in opposition; all of which are before us, accomplishing' little good, except to be.cloud' and befog the actual merits of the case and render the doing of justice more precarious and- difficult. In its legal history and antiquity it may be likened to Jarndyce v. Jarndyce; and in the number and variety of the legal steps taken (some of which are actually involved), it may be consulted as a companion text to “Caruther’s History of a Law Suit.” '

Should the above facts, when read in connection with the three expositions of facts as set out in the three opinions already rendered herein, prove to be not a sufficient statement of facts, others pertinent and necessary will be found in the subjoined opinion.

I. Before reaching and examining the merits, we must dispose of two contentions strenuously urged by learned counsel for plaintiff. These contentions are (a) that the bill of exceptions not having been filed within the time granted by the trial court, and that court having no authority to make the. nunc pro tunc order, there is therefore no bill of exceptions before us, and we are relegated for error to what may be aptly called the “record proper;” and (b) that the abstract of defendant does not show that a motion for a new trial was filed and overruled. These in their order.

Upon the contention (a) that the bill of exceptions was not filed in time, we must as an academic proposi-bui of _ TPnePof0nS’ Laws9i 911 ■p. 139. ■ tion agree; but in the present condition 0f the law we cannot so hold. Prior to the passage of the Act of March 13; 1911, we are the opinion that the point made by counsel for plaintiff would have been well taken, and that the contentions of defendant that plaintiff is concluded by the mere fact that the- court below made the nunc pro tunc order is hot'Well taken. - ’■

But in the view which we take of the law as it now exists, the discussion is, as stated, merely academic. Prior to the passage of the act mentioned, we must, upon the record here, have east aside the hill of exceptions as not having been filed in time; we should have been compelled to hold that the burden of showing that the bill of exceptions was filed in time, was upon the defendant below (the appellant here), and to that end, since upon the prima facie showing his time to file the bill had expired, he must have shown a legal basis for the action of the court in making the order nunc pro tunc. If he failed to show this, it might well be, nothing further appearing, that a presumption would have been indulged in favor of the right action of the court below in making the nunc pro tunc order. But the right still lay in respondent (plaintiff below), to bring up by an additional abstract, such matters as had been, by a timely term bill of exceptions, made a part of the record, so as to show that no proper legal basis existed for the making of the nunc pro tunc order. By right, it was defendant’s duty to make this showing; having failed, he cannot urge, as he does, that plaintiff was bound to appeal from a matter in which no appeal lay. Plaintiff, by his additional abstract, has brought up the complete record in a proper way, thus performing rightly a duty incumbent upon defendant in the first instance. On this showing, absent the statute referred to, we must have been relegated for error to the record proper alone. But as the law now- is, we rule this point against plaintiff.

For many years, not here necessary to chronicle, the statute regulating the filing of bills of exceptions', stood thus:

“Sec. 2029. Such exceptions may be written and filed at the time or during the term of ■ the court at which it is taken, or within such time thereafter as the court may by an order entered of record allow, which may be extended by the court or judge in vacation for good canse shown, or within the time the parties' to the snit in which snch bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in said suit and copied into the transcript of record when- sent to the Supreme Court or Courts of Appeals. All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions.”

Construing the meaning of this statute this court consistently held that, while extensions of time to file a bill of exceptions could be made by the trial court (an order to file such bill in vacation having theretofore been made of record); yet such extensions must be so made while the time of the former order, or an extension thereof, was still current and unexpired. [State v. Eaton, 191 Mo. 1. c. 155.] When once the time had elapsed, ipso facto the power in the trial court of extending time to file lapsed, and the court below was sheared of jurisdiction. [Dorman v. Coon, 119 Mo. 68; Danforth v. Railroad, 123 Mo. 196.] Thus stood the statute and its construction when the Legislature amended and re-enacted it in 1911, so that it read thus:

“Section 2029. Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may by an order entered of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which said bill of exceptions is proposed to be filed, or their- attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in said suit and copied into the transcript of record when sent to the Supreme Court or Court of Appeals: Provided, in all cases now and hereafter pending on appeal in the Supreme Court and in any of the Courts of Appeals, the bill of exceptions therein may he allowed by the trial court, or the judge thereof in vacation, and filed in such court, or with the clerk thereof in vacation, at any time before the appellant shall he required by the rules of such appellate courts respectively to serve his abstract of the record, and for the purpose of determining whether such bill of exceptions shall have been filed within such time such appellate court shall make reference to its docket: Provided, that if for any reason the bill of exceptions cannot be allowed and filed within the time above provided, then the judge before whom such case was tried shall certify in writing such fact to the appellate court in which the appeal is pending, and such appellate court shall reset or continue such case for a sufficient time within which to enable such bill of exceptions to be allowed and filed, and in that event the time within which such bill of exceptions may be allowed and filed shall be determined by the time within which appellant’s abstract must be served after such resetting or continuance. Hereafter no case now or hereafter pending in any appellate court shall be affirmed for failure to file a bill of exceptions within the time allowed by the trial court, but such case may be affirmed for failure to file a bill of exceptions within the time in this section provided, if error do not appear in the record of the case. All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions.

“Sec. 2. In view of the fact that many judgments are affirmed from time to time because the bill of exceptions in the actions in which such judgments are rendered are not filed within the time allowed by the "trial court and are not considered upon the merits of “the cause, an emergency exists within the meaning of "the Constitution; therefore, this act shall take effect and be in force from and after its passage and approval.” [Laws 1911, p. 139.]

The legislative intent looms large when we view by the fonr corners the section as amended, although it is carelessly and inartificially drawn. As it stood formerly, and as the first sentence of the section yet stands, there was no specific inhibition limiting the power of the trial court to extend for good cause shown the time to file a bill of exceptions, even after a lapse had occurred. • This construction, in all the States upon similar statutes, was, however, well nigh universal. [3 Cyc. 38, and cases cited.] As the new section now stands there is still nothing, either in the first clause or in the first proviso, which militates against the old holding. No reason is seen why or wherein the addition of the first proviso necessarily changed the rule or made possible the doing of anything which could have been done before the change was made. ‘ ‘ Short-form” appeals, or appeals by an abstract of the record in lieu of a complete transcript, were just as feasible before the amendment as after the amendment, so far as the present first proviso and the first clause of the present statute are concerned. But when we come to construe the second proviso, we see for the first time a marked change. First, a new ground of continuance in the appellate court is provided for, in this, to-wit: “If for any reason the bill of exceptions cannot be allowed (settled?) and filed” by the time the rules of the appellate court require the abstract to be served -on the opposite side, “then the judge before whom such case was tried shall certify in writing such fact to the appellate court in which the appeal is pending, and such appellate court shall reset or continue such case.” Second, following this, we note this compelling language: “Hereafter, no case now or hereafter pending in any appellate court shall be affirmed for failure to file a bill of exceptions within the time allowed by the trial court.’’

That a case may yet be affirmed pursuant to subsequent provisions of the section, no error appearing upon the record proper, upon the failure of appellant both (a) to file his. hill of exceptions prior to the expiration of the time at which he is required to serve an abstract upon the opposing side, and (b) to procure the certificate of the trial judge entitling him to a continuance, is patent, but this fact is beside the question here.

The requirement that we must construe a statute or amendment thereof, in accord with the intention of the Legislature is fundamental. [State ex rel. Eaton v. Gmelich, 208 Mo. 152; Grimes v. Reynolds, 184 Mo. 679.] The intention here evidenced is plain and unmistakable, The language of the emergency clause also stands as a sign-post pointing to the legislative intent; as if it were a formal “whereas,” directing the mind to the thing intended to be done.

This case, as its chronology bears witness, was pending undisposed of when the amendment under discussion was adopted. It is a change in the law of legal procedure and may be invoked in the case to save the affirmance for failure to file the bill of exceptions in time. We hold that time is no longer of the essence, in the filing of a bill of exceptions, on an appeal to this cou-rt. Where a timely order is made, granting leave to filé the bill of exceptions in vacation, such bill may be filed at any time before the appellant shall be required by the rules of this court to serve his abstract of the record on the opposing party, or even thereafter, upon compliance with the requirements of the second proviso of the section as now amended. . The point (a) made by respondent is disallowed.

We have carefully examined the printed abstract of the record, filed herein, in lieu of a full and perfect transcript, and in our view this abstract is a sufficient compliance with the law and the rules of this court. Touching contentions of this sort, this court of late, in deference to substantial justice, has cast aside much of technicality and has taken a broader view of matters relating to appellate procedure. [Cf. Rule 32, Sup. Ct. Rules, adopted Dec. 10, 1912.] That such a view is logical and more modern, and makes for right and justice, needs no argument. If vital omissions in record entries have in fact happened, then respondent, upon a showing of the fact, or if the fact he manifest, is yet entitled to a dismissal of the appeal or an affirmance of the judgment, according as the facts shown may entitle him. But if all such jurisdictional record entries were in fact made below and are so stated in the abstract to have been made, why require an intricate, factitious and fastidious recital of the manner and means thereof. The abstract is held sufficient and the point disallowed to respondent.

II: Coming now to the points urged upon us by defendant, we are met. in limine by the contention, Supreme Court: Superintending Control Over Courts of Appeals. most earnestly, not to say vehemently, urged by his learned counsel, that this court was wrong in the action which it took in the case of State ex rel. Curtis v. Broaddus et al., 238 Mo. 189; that this court had no authority under the Constitution to quash the judgment of the Kansas City Court of Appeals and.to direct that court to proceed to hear and determine this case in accordance with the holding of this court when the case was first here on appeal (201 Mo. 217); that under the Constitution and the facts here the judgment of the Kansas City Court of Appeals was final and this court is now without jurisdiction to hear and determine this case. (The minute details of the contentions will be seen by a reference to the case of State ex rel. Curtis v. Broaddus et al., 238 Mo. 189, and to the brief of counsel there for respondent, who is counsel here for appellant, and the same need not here be set out at length.)

We have examined this contention with the utmost care, and inasmuch as a contrary ruling here must of necessity involve the overruling of State ex rel. Curtis v. Broaddus et al., supra, we have taken the precaution again carefully to examine our position on the questions involved. In the above case, when it was considered here on the certiorari proceeding, six members of this court approved the conclusion that the power of this court under the Constitution, and by virtue of the duty enjoined upon it thereby, was ample, and the following language, 1. c. 224, which occurred both in the majority opinion and in the dissenting opinion by Ferriss, J., was approved:

“Said section 6 of the Amendment of 1884, in speaking of prior decisions of the Supreme Court, is obviously referring to prior decisions in other cases. In has never, so far as we are advised, been contended in this court that when this court has declared the law upon a given state of facts, a Court of Appeals is at liberty, upon the same facts, in the same case, if it shall come before that court through subsequent proceedings, to refuse to follow the decision of this court. A decision by this court upon a point presented in a case becomes the law of the case upon that point. It is in the nature of res adjudicata upon that question. In further proceedings in the same case before a Court of Appeals, the prior decision of this court must be followed, when the same point is presented upon the same facts. If that court attempts to disregard' the decision of this court, upon such point it exceeds its jurisdiction. When a court acts without jurisdiction, or in excess of its jurisdiction, it is in error, and the error may be reached by certiorari. This court said in M. K & T. Ry. Co. v. Smith, 154 Mo. 1. c. 308, ‘ Courts at all times are under the imperative duty first to inquire into its authority to try a cause, and then to keep within the proper limits of jurisdiction prescribed by law.’ Therefore, although a court may have jurisdiction of a case, if it, upon any point, exceeds its jurisdiction, the error may be reached by certiorari, there being no remedy by appeal or writ of error in such case. This court has many times decided that a decision by the Supreme Court upon a point becomes the law of the case upon that point, and is controlling upon further proceedings in that case in the lower court, and also that, with rare exceptions, such decision will bind this court upon a second appeal upon the same point. In the case of May v. Crawford, 150 Mo. 1. c. 525, ... we said: 'This rule is necessary to the orderly and decent administration of the law, for it would destroy all respect for the law, and make judgments of courts of final resort mere mockeries and travesties, if the trial court could be permitted on a trial anew in that court to set aside, disregard or disobey them.’

"Again, in the case of Gracey v. St. Louis, 221 Mo. 1. c. 5, Lamm, J., speaking upon this question in behalf of the court, says: ‘On a second appeal or writ of error on the same facts and pleadings, the appellate court will not notice questions determined in the previous decision. All such are res adjudicata and closed. For the practical administration of justice, the former decision is the law of the case;’ citing numerous cases. True, he says further, and properly: ‘Like all general rules, the one in hand has its exceptions. Where manifest and far-reaching error has been committed, no cast-iron or immutable rule bars a re-examination of a question ill decided. In such case it goes without saying that this court, as a debt due to justice, and as one of the foundation stones of its own dignity, reserves to itself the right to reconsider, re-examine and re-determine.’- •

‘‘It will be perceived, however, that while this court reserves, as it must, the right to re-examine its former decision in the same case, upon the same state of facts, that right is not accorded to the lower court. If this court makes a mistake either as to the law or the facts of the case, as may happen, inasmuch as the court is composed of human judges, it has the power— fortunate that it is so — to correct that mistake by reversing itself on a second appeal; hut it by no means follows that the trial court or the Court of Appeals has the same, right in this regard. "When a point, once decided by this court, comes before either the circuit court or the Court of Appeals on further proceedings in the same case, neither of the courts last named has jurisdiction to overrule this court. Here the question is different from that presented in the case of State ex rel. v. Smith, 173 Mo. 398, where the superintending power of this court was invoked upon the Court of Appeals, because that court refused to follow a prior decision of this court in other cases. Here the question is .as to the duty of that court to follow the prior decision of this court in the same case. It becomes not a question of whether that court is right or wrong in its. construction of the decision' of this court, but whether that court is within its lawful jurisdiction if it disregards the law of the case as previously declared by this court. Upon the question here presented, in view of the fact that there is no way of bringing the point before this court by appeal or writ of error, we have no hesitation in holding it to he our duty, under the superintending • control given this court by the Constitution, to review the action of the Court of Appeals by certiorari.”'

It is true that even as early as the Constitution of 1865, and some eleven years before either of the courts of appeals was actually established, we had in thát Constitution this section: “The Supreme Court shall have a general superintending control over all inferior courts of law. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.” [Sec. 3, art. 6, Constitution, of Mo. 1865.] This section was carried in totidem verbis (except the words “of law,” in tbe first sentence, were omitted) into the Constitution of 1875. [Sec. 3, art. 6, Constitution of Mo. 1875.] If this were all of the organic law it might well he urged that the makers of the Constitution did not have in mind the application of the provisions of -this section as conferring the power of supervisory control of the Supreme Court over the several courts of appeals. But by the Amendment of 1884, which may he called the “Courts ■of Appeals Amendment,” there appears not only this section, to-wit:

“Sec. 6. 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 afterwards certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals.”

But also and in addition this section:

“Sec. 8. The Supreme Court shall have superintending control over the courts of appeals by mandamus, prohibition and certiorari[Sec. 8, Amendment to Cons. 1884.]

For fear apparently, that the “superintending control” might be construed as not reaching and applying to the courts, of appeals, the makers of this amendment, in addition to providing as they did, in section 6 of the Amendment of 1884, for the transfer ■of causes here from the courts of appeals, by the un-Pampered volition :of a judge thereof, also, by section ;8 of said amendment, re-enacted and reiterated the language of section 3 of article 6 of the Constitution •of Missouri of 1875, and specifically conferred upon this court the power of superintending control over these courts by certiorari. In the light of all this, it will not do to say that we may not reach an act, or a decision of the several courts of appeals, except such courts, by the act of a judge, or the judges thereof voluntarily sending the case here by transfer- as provided in section 6 of the Amendment of 1884, supra. The courts of appeals are by said section 6 given the right to send eases here of their own, or their judges’ volition; we are by said section 8 of the Amendment -of 1884, supra, given the right by virtue of our general superintending control to cause cases to be sent here, by our power under the Constitution, or by our own constitutional volition. We have consistently held that when a case is sent here by a judge, or the judges, of one of the courts of appeals, under the provisions of said section 6, we will assume jurisdiction, just as if we had ‘ ‘ obtained jurisdiction by ordinary appellate process;” and further, that we will not, before assuming jurisdiction, and as a condition precedent thereto, nicely guage or weigh the question whether there is a conflict of decision or not, but will leave the determination of conflict vel non to the Court of Appeals which sends the case here. [Rodgers v. Ins. Co., 186 Mo. 248; State ex rel. v. Rombauer, 140 Mo. 121; Clark v. Railroad, 179 Mo. 66.]

It may well be that our only power of enforcing the provisions of the last clause of said section 6, and of making, to-wit, “the last previous ruling of the Supreme Court on any question of law or equity . . . be controlling authority in said courts of appeals” is derived from the broad power of “superintending control” given by section 8 of this amendment. A case of recalcitration, which has never arisen and will perhaps never arise, but wbicb is readily sup-posable, might come up in which any one or more of the courts of appeals would utterly refuse to follow this court or to follow one another; absent the power of superintending control somewhere lodged, there would then be four supreme courts instead of one — • a thing unthinkable.

We therefore again hold that the contention of defendant that this court lacked the power to quash the judgment of the Kansas City Court of Appeals and to order that court to proceed to re-try this cause in accordance with the opinion of this court in Curtis v. Sexton, 201 Mo. 217, is not well taken, and that so far as this point is concerned, we are not sheared of jurisdiction,

III. Defendant makes further complaint of juris-Appellate Jurisdiction: Prior Decision: Laws 1911, p. 190. diction in us, and urges that the Act of March 30, 1911, Laws 1911, p. 190, is void for the alleged reason that the provisions • of said act contravene subdivisions 17, 32 and 33 of section 53 of article • 4 of the Constitution .of Missouri of 1875. The act in question is as follows:

“Section 3937. The various courts of appeals of Missouri shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars.. All cases now pending in the Supreme Court, which have not been submitted, and which by the provisions of this section come within the jurisdiction of said courts, of appeals, shall be certified and transferred to the proper courts of appeals, to be heard and determined by them, provided that the Supreme Court shall retain and have full exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision or ruling.”

It is clear that if we have jurisdiction, such jurisdiction attaches by virtue of the language of the proviso, to-wit: “Provided that the Supreme Court shall retain and have full exclusive jurisdiction in any case pending in which the Supreme Court has made any •decision or ruling.” This clause does not require the case to be pending in the Supreme Court, hut merely that it be pending undisposed of in some court, whereby and in the course of judicial procedure, it may come again here; for if this is not the intention why the necessity for using both the words “retain”' and ■“have?” If the lawmakers had had in mind merely the retention of jurisdiction where a case was pending here, and in which a “decision” had been made, there arises no necessity of using either the word “have” or the word “decision.” If in a “pending” case a “decision” has been reached, it is no longer pending, if we may be pardoned an Hibernicism. Nor does the statute expressly require more than that the cause be still pending, and that this court shall theretofore have made some decision or ruling therein. If it be still pending in the circuit or other court from which an appeal may be prosecuted, since this court has decided a former appeal, i. e., made “any decision or ruling,” it has jurisdiction in any subsequent appeal.

The constitutional objections urged are those relating to the passage of local laws, and laws touching upon “class legislation.” No specifications are furnished us by counsel showing wherein a provision of this act violates the rule forbidding class legislation, nor do we know of any such reason. The law applies to all pending cases, both those which are here and those which shall hereafter be appealed to this court wherein this court shall prior to the passage of the act, have made some decision and ruling. We rule this point against defendant.

IV. Upon the merits of the case defendant urges fifteen assignments of error, and twenty-two additional subdivisions thereof. (Note: Yet we are charged, and often convicted, by the bar of the State with making our opinions too long!)

The chief point in the case, and the point about which the entire controversy turns, is whether Curtis, the plaintiff, either made a tender of the deed back to Sexton & Bracking on October 6, 1890, or was relieved by his acts or the acts of Sexton & Bracking from making such a tender. The decision of this-point practically decides all of the issues, and renders-unavailing practically all other points urged.

There is no proof of a tender of a deed to either Sexton or Bracldng, or to Sexton & Bracking on the 6th day of October, 1890. Three letters, one dated ofisolutlon'' Tender. ’ September 13, 1890, another dated Sep-^em^er 29, 1890, and yet another dated September 30, 1890, were sent'by Curtis, the plaintiff, to defendant Sexton. To neither of these letters did Sexton reply, though the triers of fact were justified in finding he received all of them. Plaintiff also wrote letters to Bracking, the receipt of which is not denied. In all these letters plaintiff stated that he intended to exercise his right to take back the money paid by him to the firm of Sexton & Bracking; and in the last letter to Sexton, that which plaintiff avers he wrote on September 30, 1890, plaintiff (says he) gave Sexton a memorandum of the amount due him and directed Sexton to make deed, send same through some bank or per express, with draft attached, in favor of plaintiff, which draft was to be delivered to plaintiff when he executed the deed back to Sexton & Bracking. If it be true that the amount set out in this letter exceeded the sum actually due plaintiff, the latter in another letter wrote defendant that the sum due plaintiff was shown -by defendant’s books. Sometime prior to October 6, 1890, Bracking, in an undated letter, which letter plaintiff says he received on October 6,1890, expressed his inability to comply with the demand of plaintiff to repay plaintiff’s money and take a conveyance hack for the land. All of these letters are set ont in one or the other of the reports of this case, and we need not encumber the record here with them.

Plaintiff testified that he never had knowledge of the dissolution of the real estate co-partnership existing between Sexton & Bracking. Prom the evidence the jury, however, might well have found that he did have such knowledge. But is this a case which in the condition of the pleadings makes the question of partnership vel non an issuable fact? Upon the side of defendant on the trial it was so treated, without objection, but by a reference to the pleadings it will be seen that plaintiff alleges the existence of the partnership on January 5, 1888, and its continued existence “for a number of years thereafter, including all the year of 1890.” Touching this and other allegations, the answer is an unverified general denial only. (Other defenses are urged on other phases, but none other on this issue. Our statute,- in chapter 21, article 13, entitled, “Issues, Continuances and Trial,” and in section. 1985 thereof provides, among other things, as follows:

“And where plaintiff or defendant sues or is sued as a corporation, and where plaintiffs or defendants, .sue or are sued as a partnership, and the names of the several partners are set forth in the petition or answer, it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause.”

The answer, though a general denial on this, phase, as we have seen, is not sworn to. In order to put the existence of a partnership in issue it is necessary to deny the existence thereof under’ oath. [Nephler v. Woodward, 200 Mo. 179; Short v. Taylor, 137 Mo. 517.] The allegation of partnership and its. continuance for'at least a period embracing tbe matters complained of in the petition, is specific. It would seem to have been sufficient if the pleader had merely set out that “S. E. Sexton, the defendant, and one F. B. Bracking, were on January 5, 1888, co-partners and were and continued so to be, during all of the times hereinafter mentioned.” It could not, we apprehend, have been then urged that an issue as to partnership would have arisen upon an unverified answer. But plaintiff is here even more specific in his allegations. Under the state of the pleadings it stood admitted that defendant and Bracking were partners on and prior to October 6, 1890, and whatever Brack-ing said or wroté to plaintiff on and before that day bound defendant Sexton; notice to Bracking was notice to defendant Sexton, and waiver of tender by Bracking likewise bound defendant. Bracking wrote plaintiff on September 26, 1890, and said in his letter, among other things: “I could not possible [sic] raise the money by Oct. 6,” and further in substance gives it as his opinion that Sexton is also “close run for cash too just now.” In another letter, not dated, but received by plaintiff (he says) on October 6,' 1890, Bracking, in language more expressive than elegant, avers his utter inability to comply with his contract and buy the land back. [See letters referred to in 142 Mo. App. 179.] We must judicially notice the existence of mail service and of the great telegraph and telephone systems of the country, binding together the great marts of trade as if in a single village, and hold that with this letter before him plaintiff was not bound to do a futile and useless thing, to make out and tender a deed and to demand money which he was told before hand could not, and would not, be paid to him. This ease was considered on its merits here in 1907, on the first appeal, and again regard was had to the merits in 1911, in the case of State ex rel. v. Broaddus et al. supra, 1. c. 212. On this question, the court, speaking through BeowN, J., said:

“ Going back to the merits of the case of Curtis v. Sexton, we observe that the respondents in their opinion have laid great stress upon the proposition that time was of the essence of the contract to repurchase the property, holding that plaintiff cannot recover the money which he paid to defendant unless he tendered a deed to defendant on October 6, 1890. This is a misconstruction of the law of the ease, as •announced in our former opinion. There is not one word in the contract requiring Curtis to tender a deed ■of reconveyance on October 6, 1890. At most, it only required him to, notify defendant of his desire to resell •said property on that day; and the law, looking at the substance rather than the form of things, holds that if a notice was given of plaintiff’s desire to resell said property to defendants a few days before October 6, 1890, and not subsequently withdrawn, that notice was a sufficient compliance with the contract, when followed up, as it was, by a formal offer to reconvey within a reasonable time, regard being had to the situation of the parties.

“AVhen plaintiff Curtis purchased the real estate, “there was an outstanding deed of trust on same to secure a large sum of money, so that plaintiff only purchased an equity in the property. The property was •advertised under this- de.ed of trust on December 4, 1890, and subsequently sold. This deed of trust had been placed on the property by defendant Sexton and -others; but its existence has no bearing upon Sexton’s liability on the contract sued on.

“It will be observed that on December 1, 1890, plaintiff Curtis went to Kansas City, Missouri, and •actually tendered a deed of reconveyance to defendant Sexton, and again demanded the repayment of the money he had paid on the land. This was three days before the land was advertised for sale under the deed of trust, so that so far as the facts disclosed by the record show, there was no excuse for Sexton to refuse to accept the deed and repay Curtis the money be bad invested.

“If plaintiff bad sold the interest in the real estate which he purchased of Sexton & Bracking, or bad allowed the same to become encumbered by judgments or other similar liens, this would have afforded a valid excuse for defendant to refuse to repurchase-said interest; but no such defense is pleaded or mentioned in the evidence. Plaintiff tendered a -proper deed to defendants before the property was advertised for sale under the deed of trust above mentioned; so-that there was no such change in the situation of the parties or the title of the property between October 6,1890, and the date of tendering the deed, as warranted the respondent in bolding that time was of the-essence of the contract. [Hunt on Tender, sec. 282;. Lawrence v. Miller, 86 N. Y. 1. c. 137.]”

If no privity existed between defendant and Bracking, and if plaintiff was required to tender bis deed on October 6,1890, all of which is contended, then clearly'this case breaks down upon a thing under the facts here impossible of performance. Bracking was. somewhere in Ohio, inferentially near Columbus, and Sexton was in Kansas City, on the day in question. We judicially notice the exact geographical location of Kansas City in our State. We notice also the location of the State of Ohio, as a State of the Union, and we know the impossibility of maldng tender of a deed at or near Columbus, Ohio, and making on the same day tender of the same deed, at Kansas City, Missouri. The contract here was a contract obligating both defendant and Bracking to buy back the land at the election of plaintiff; upon electing plaintiff was. to deed it back to both of them, and not-to any one of them. Whether the partnership was dissolved or not as to all of the rest of the world, could it be so dissolved as to plaintiff who held a joint subsisting partnership agreement with both defendant and Bracking, as to prevent defendant from being bound by dealings and notice and tender, done, had, or made to Bracking? Greenleaf lays down the rule in such eases thus:

“But in the absence of fraud, if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one is, in general, evidence against all. They stand to each other, in this respect, in a relation similar to that of existing copartners. Thus, also, the act of making a partial payment within six years, by one of several joint makers of a promissory note, takes it out of the Statute of Limitations.” [1 Greenleaf on Evid. (16 Ed.), see. 174.]

If notice is required to be given to persons engaged in a joint act, it would seem that service of notice upon one of such persons is sufficient. [29 Cyc. 1119, and cases cited.]

It follows that the objections of defendant to the evidence offered by plaintiff; to the instructions given for plaintiff, and to the act of the court in refusing certain instructions offered by defendant, are disallowed, since they all turn-upon the matters above discussed. Other alleged errors have been carefully considered, but we find in them no such error as under the law justifies us in reversing the case. [Sec. 2082, R. S. 1909.]

We have been so impressed with the urgent zeal of counsel in his strenuous insistence that this court, in its action taken at divers times in this case, has in effect become particeps criminis in depriving his client of money not justly due, that a word on that phase may not be inappropriate. Plaintiff has lost his money, unless he recovers from defendant; if he recover from defendant, the latter loses. We are dealing with hardships, and some one is bound to lose. Plaintiff and defendant are adults and not infants, and were adults and not infants when the contract— the hone of contention — was made. For such, the law merely enforces contracts; it does not make them. In order to get plaintiff’s money, defendant agreed to pay hack to him all money plaintiff put in the land, if plaintiff desired this to he done, on October 6, 1890. Plaintiff electing to he repaid, defendant refused to pay, and this action resulted. Inherent justice considered, should plaintiff lose in a sense, both his money and his contract, or should defendant lose his money only? In law there can he hut one answer to this, and in a way the maxim: In restitutionibus benig-nissima interpretatio faciendo, est, applies; hut learned counsel would seem to urge upon us the maxim: Est aliqiud quod non oportet, etiam si licet.

Much has been written in this case, both by counsel and the courts in the dozen years or more in which it has been pending, but a time should come when all cases end. Let the judgment be affirmed.

Brown J., concurs; Lamm, G. J., and Graves and Walker, JJ., concur in all except the first paragraph ■in separate opinion by Leaves, J.; Bond, J., dissents on the ground that this court has no jurisdiction; Wood-son, J., takes no part.

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Concurrence Opinion

SEPARATE CONCURRING- OPINION.

GRATES, J.

I concur fully in the result reached by the opinion in this case, and also concur in all of the opinion except the first paragraph thereof. In the first paragraph there is given a construction to the Act of 1911, therein set out, contrary to the views heretofore expressed on that question. [Craig v. St. Louis & S. F. Railway Co. 248 Mo. 270; Ottumwa Bridge Co. v. Corrigan et al., 251 Mo. 667.] Under the ruling in the Craig and Corrigan cases supra, if the appellant cannot sustain his bill of exceptions by the nunc pro tunc entry, then there is no bill of exceptions in the case. All of Division One concurred in the Corrigan and Craig cases, supra.

Lamm, C. J., and Walker, J., concur in these views.