171 Mo. 455 | Mo. Ct. App. | 1903
This is an application for a writ of prohibition to be directed against the judges of the Kansas City Court of Appeals on the alleged ground that they have assumed appellate jurisdiction of a case in which title to real estate is involved.
For the purposes of this application the following is a sufficient statement of the facts:
The petitioners, Elizabeth Klingelhoefer et al., in December, 1897, brought a suit in equity against Margaret Ziemendorf, their mother, alleging that she had purchased certain real estate in the city of St. Joseph with their money and had taken the title in her own name, and praying that she be divested of the title and that the same be vested in them. A decree was rendered in accordance with that prayer.
In May, 1898, one Rieschick obtained judgment in the Buchanan Circuit Court for $525.01 against Margaret Ziemendorf, and in April, 1899, he filed a suit in equity against her and her daughters, the petitioners ir this proceeding, the plaintiffs in the case just mentioned, alleging that he had loaned the money on which his judgment was founded, to Margaret Ziemendorf, on the
I. The point is made in the briefs for respondents that appellants, by voluntarily carrying the record to the Kansas City Court of Appeals, assigning errors, filing briefs and submitting to judgment therein, are estopped to deny the jurisdiction of the court. But that point can not be sustained. If title to real estate was involved in the suit, the Court of Appeals did not
II. The record shows that the Court of Appeals had concluded whatever it had to do with the case, had rendered final judgment, overruled the motion to transfer to this court, sent its mandate to the circuit court and adjourned the term before this application for a writ of prohibition was made. That court was not therefore doing or indicating an intention to do, anything in the matter; the case was no longer in the court. A writ of prohibition will have the effect to undo what has already been done in a case where the court against which the writ goes has begun to take action, but has not finished. But when the court has exhausted its force, rendered its final judgment and nothing is left undone, there is nothing to prohibit. [High on Ex. Legal Rem., sec. 766; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 276.] It is not stated in the petition that the Court of Appeals is doing or is about to do anything to enforce its judgment. On the contrary, that court has nothing to do with enforcing the judgment; it merely affirmed, the judgment of the circuit court, which latter is the only court that can enforce it. A judgment of affirmance is self-executing; it operates only on the judgment of the trial court. Petitioners are not entitled to a writ of prohibition.
III. But in addition to the prayer for a writ of prohibition, is also a prayer for an order on the Court of Appeals to transfer the cause to this court. If that court liad no jurisdiction of the subject it should have sustained the motion to transfer the cause to this court, and having failed to do so, it would devolve on this court to make an order requiring the transfer. We are thus led to a consideration of the question, was title to
Under the circumstances of this case the petitioners are not entitled to the writ of prohibition nor to an order to transfer the cause to this court.