McCraw v. Hubble

61 Mo. 107 | Mo. | 1875

Sherwood, Judge,

delivered the opinion of the court.

The only question this record presents is whether the Circuit Cour;, of Greene county, on appeal from the Probate and Common Pleas Court of that county, should proceed to try the cause appealed de novo, or should hear and determine it solely as an appellate court upon errors assigned. Section 16 •of the act establishing the Probate and Common Pleas Court of that county, (Loc. Acts, 1855, p. 59) provides that “ the parties litigant in this court shall have the same right of appeal or writ of error from this to the Circuit Court or to the Supreme Court direct that parties litigant have from the Circuit to the Supreme Court.” If, instead of appealing to the Circuit Court, the plaintiff had sued out his writ of error from that court there can be no doubt but that the only effect of that writ would have been to bring up to that court the record of the Probate and Common Pleas Court, and that upon the record thus presented errors would have to be assigned in the manner customary in appellate tribunals. And no reason is seen why the same results should not follow ■ the taking of an appeal, as the legislature have made no distinction between these two methods of transferring causes from that court to the Circuit Court. In other words, it certainly never could have been intended that parties could at then-option obtain in the Circuit Court a trial de novo by taking an appeal or an examination into alleged errors by suing out a writ of error; for by the law organizing the Probate and Common Pleas Court, parties litigant only possess “the same right” to transfer their causes by appeal or writ of error that they would possess were they attempting a like transfer from the Circuit to the Supreme Court, in which latter case there could be but one opinion as to the proper method of procedure to be adopted. Nor after the frequent decisions made upon the power of the legislature over these courts of statutory origin, can the existence of the power to thus regulate and authorize appeals from, and writs of error to, these courts to the Circuit, or Supreme Court, be doubted. (Harper vs. Jacobs, 51 Mo., 296; Ross vs. Murphy, 55 Mo., 372; Smith vs. Guerant, Id., 584.) A question somewhat similar to the one before us, was recently presented in the case of Schulenburg vs. Evans, 59 Mo., 41, where the construction of a statute substantially the same as the present one, wras involved, and the conclusion there reached was that parties appealing from the judgment of the Common Pleas Court of Cass county to. the Circuit Court of that county did so, upon precisely the same terms, and under the same conditions, as if appealing directly from the Circuit to the Supreme Court. The Circuit Court dismissed the appeal because of the failure of the plaintiff to assign errors, and this action I regard as correct, holding as I do, that the assignment of errors, w^as a necessary and inseparable incident of the exercise of appellate jurisdiction. My associates concur in the view that the plaintiff was not entitled to a trial de novo-, but hold also, that as it is not provided by the law organizing the Probate and Common Pleas Court, nor so far as appears, by any rule of practice in the Greene Circuit Court, that parties coming by appeal or writ of error, from the former to the latter court, 'should assign errors, therefore, this was unnecessary, and that the Circuit Court should, without any assignment of the sort, while refusing a trial anew, have examined the record, and if discovering any error therein, should have taken appropriate action in reference thereto.

The judgment must therefore be reversed and the cause remanded to the Greene Circuit Court.

Judge Tories absent; the other judges concur.