154 Mo. 300 | Mo. | 1900
On the 4th day of February, 1899, the relator presented to this court its petition for a writ of
This case is presented to the court upon the facts as stated in relator’s petition, the sufficiency of which is challenged by demurrer filed on the part of the defendants. Without setting oiit the petition, it is sufficient to say that the relator contends for two reasons the writ in this cause should be issued:
First: Because the court of appeals transcended its constitutional power and undertook to decide the case of Elliott v. Missouri, Kansas & Texas Railway Company in disregard of and contrary to the ruling of this court in the case of Brown v. Baldwin, 121 Mo. 126, which, it is alleged by the relator, is the last ruling upon the question of law and equity involved in the cause, before the court of appeals, and ought therefore to have been controlling authority in that court; and,
If relator’s second contention is well made, it has an unqualified right to the writ ashed for. If in the case of Elliott v. Railway Company, begun in the- Cooper County Circuit Court, a federal question is involved, the Kansas City Court of Appeals was and is wanting in authority to try the cause, and the jurisdiction thereof is in this court, and thi3 court has the right, by aid of its writ of prohibition to prevent that court from proceeding further in the premises, and by its writ of mandamus to compel the cause to be certified to this court for determination.
If in that case authority exercised under the United States is drawn in question, -then by section 4 and 5 of the amendment of our constitution of 1884, express jurisdiction is conferred upon this court to hear and determine the question on appeal, and authority is denied the Kansas City Court of Appeals. On this proposition, unlike in the first, the question to be considered is not whether the Kansas City Court of Appeals may have decided properly or not the question presented to it, for if a federal question is in the case, the Kansas City Court of Appeals had no jurisdiction in the premises and was wanting in authority to consider the case at all, as 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, that law may be administered from lawful tribunals, and not by usurpations in the name of law.
The petition filed in the Cooper County Circuit Court set out the fact that on the 29th day of November, 1893, there was pending in the circuit court of the United States for the central division of the western district of Missouri, a suit by the said Elliott against The Missouri, Kansas & Texas Railway Company (the relator herein) to recover from it $37,759.73, for railroad ties furnished the railway company by said Elliott; that the railway company then instituted its suit in equity in said United States court to obtain an injunction against said Elliott, to restrain the prosecution of said suit against it, and that such proceedings were had therein, that a temporary injunction was granted, upon the execution by the railway company together with E. C. Simmons and William Nicholl as its sureties, of the bond sued on, in the sum of $20,000, conditioned that if the said railway company will abide the decree which may be made in said cause ou't of which said injunction was issued, and shall pay all sums of moneys, damages and costs that may be adjudged against it if the said temporary injunction shall be'dissolved, the bond shall be void, otherwise to remain in full foree and effect.
Eor breach of said bond the petition set out the following assignments: that said temporary injunction was dissolved and that the plaintiff, in and about procuring the dissolution of said injunction, was put to great trouble and expense, and
To plaintiff’s petition the defendant railway company filed the following answer, caption and title omitted:
“Now comes the above named defendant, and, for answer to the plaintiff’s petition herein, admits that it was, 'and is, a corporation organized according to law; that at the times stated in the petition there was pending in the circuit court of the United States for the central division of the western district of Missouri a suit instituted by this plaintiff against this defendant, as alleged in the petition, and that the defendant instituted a suit in equity in said court against the plaintiff, and that in said suit a temporary injunction was granted, and that the defendant, as principal, with E. C. Simmons and William Nichols, as sureties, executed an injunction bond as stated in the petition, but defendant denies that said suit in equity was instituted by this defendant to obtain an injunction against the plaintiff, and defendant alleges that the granting of said injunction was merely an incident to said suit instituted for the main and principal purpose of cancelling and annulling a certain alleged report of inspection of ties, all of which proceeding was necessary to enable this defendant to make its defense in the said United States court to the action instituted by this plaintiff against this defendant as stated in the petition.
“Farther answering said petition, this defendant denies
Upon the face of the petition and answer filed in that case, as well as in the motion for a new trial, nothing is shown to have suggested to the court of appeals, when the case reached there, that a federal question" was involved in its determination, that would operate to defeat its jurisdiction in the premises, or that would require its certification to this court. Likewise an examination of the brief filed by the appellant in that case with the Kansas City Court of Appeals, fails to disclose that ■ evidence was offered or called for by appellant in the trial of the case before the circuit court, or that instructions were asked for or given, that would indicate the existence of a federal question in the case; nor was a federal question raised or suggested by this relator, in its brief and argument filed with the court of appeals, when the case was being considered by that court. The relator’s objection to the proceedings, and judgment against it in the circuit court, before the court of appeals, is thus fairly and briefly stated by that court in its opinion therein, as follows:
“Eirst, that there was no breach of the conditions of the bond in that it was not alleged or proved that any damages had been previously adjudged against the defendant, whereas the condition of the bond is that defendant 'should pay all sums of money, damages and costs that shall be adjudged against it,’ etc.; and, secondly, it is contended, that as the injunction bond was given in a proceeding pending in the United States court, the damages must be fixed and determined according to the rules and practice of the federal courts; that attorneys’ fees are not there considered-elements of damage in suits on injunction bonds and that therefore our state courts should apply the same rule in suits on bonds given in the federal court; and, thirdly, it is in
It is thus to be seen that the main and principal question relied upon by defendant in that case in the trial court, as well as in the Kansas City Court of Appeals, was that the injunction in the United States court, in the suit wherein the relator here was there complainant, and John S. Elliott was defendant, was only ancillary to the principal object of the action, and that the liability for counsel fees was incurred in defending the action generally, and that the dissolution of the injunction was only an incident to that result, and that counsel fees on the injunction bond are not properly recoverable for such services under such circumstances, but are limited to such services only as are necessarily incurred in dissolving the injunction when that is the relief sought by the action. Upon that question, as thus raised and presented, the facts in the circuit court were found against the defendant (the relator herein) and as no federal question was raised in its consideration or involved in its determination, and as the amount of the judgment rendered, on the determination of the question of facts, under the applicatory law was less than $2,500, the case on appeal was properly sent to the Kansas City Court of Appeals.
But says the relator, conceding that the injunction bond given in the federal court was properly sued on in the Cooper County Gircuit Court, and that the amount of judgment obtained thereon was' such as to confer jurisdiction of the case on appeal in the Kansas City Court of Appeals, still the order of the federal court requires the bond in the first instance, the order filing it and making it a part of the record and proceedings in the federal court; the law of that court governing the liability under such bonds, all became a part of the contract evidenced by the bond, and are involved
To us the contention of relator does not seem tenable. We fail to discover from the record anywhere, how “the validity of a treaty or statute of, or authority exercised under the United States is drawn in question,” or that a federal question may be said to have been involved in the case. In fact, both the petition and the answer in the case before the trial court, recognized the validity of the bond, and the action of the federal court in all its orders regarding or affecting same. It is upon the bond as a valid instrument, issued by order of proper authority, that plaintiff’s suit in the circuit court is predicated, and the relator’s answer (as defendant) in that suit admits that it executed the bond under the facts as stated in the petition, and by way of defense thereto the relator simply answered that the injunction suit in which said bond was given, was a mere incident to a main suit then pending between the relator and said John S. Elliott, and that for dissolving the injunction under such circumstances attorney’s fees are not allowable as an item of damages. That a federal question could have been raised is not denied; but that such a question was not raised, is most manifest.
If no- challenge of authority exercised under the United States is in fact made by the record, the mere assertion of its existence by counsel, coupled with the further fact that such a question might have been made under a proper answer, or by the development of a proper state of facts during the progress of the trial, will not suffice to deprive the Kansas
Nor can we agree with counsel for relator in the proposition asserted, that the law or, the rules of practice in the federal court, enter into and become a part of the contract evidenced by the bond taken therein, and to be treated and considered as if incorporated in it, and as forming a part of the contract, in a suit upon the bond in the state court. The law of the land, the lex loci contractu, and not the rules of practice or the administration of the law in any given way in a particular jurisdiction when a bond is taken, must govern in suits upon such instruments. When the relator and his sureties signed the bond in the injunction proceedings, in the United States Circuit Court at Jefferson City (instituted by itself as plaintiff against John S. Elliott ds defendant), they contracted with the defendant therein to become liable for and to pay all sums of money, damages and costs, that shall be adjudged against the plaintiff, in those proceedings, if the injunction should be dissolved — not merely such damages as under the rules and practice of that court are allowable therein, but all damages allowable by the law of the place where said bond is made and executed, as the same is administered in the courts of the situs of the bond.
A bond of this character, sued on in a state court, is to be interpreted by the rules that govern the consideration of a like instrument executed in the state courts, and while the obligors in this bond may be said to have known when they executed it, that in the United States court they would not be held liable to pay attorneys’ fees, .they must have also known, and did in contemplation of law know, that in a proceeding in our state court upon like instruments, attorney’s fees are allowable as one of the items of damages recoverable, when the -injunction shall be dissolved by the labor and efforts of attorneys employed for that purpose, and
Neither the rules, the practice or procedure, nor the mode and manner of administering the law in the United States court, applicable to the liability of bondsmen on an injunction bond given in that court, can in any wise be drawn in question, so as to present a federal question in a suit in a state court on tbe bond, when its validity, as in tbe ease of Elliottt against the relator railway company, begun in the Cooper County Circuit Court and now pending on appeal in the Kansas City Court of Appeals, is admitted and where no question as to the court’s authority to order the bond as given is or was made by the relator.
As said, the relator, as defendant in tbe suit now pending in tbe Kansas City Court of Appeals on appeal, contested the issue by an answer that in no way drew in question authority exercised under the United States, nor did it set up any claim of right by authority exercised under the United States, as abridged or taken away, nor did it deny that thq state court, wherein the suit was instituted, had authority to hear and determine tbe case. The authority of the Cooper County Circuit Court to hear and determine the case in tbe first instance is conceded by counsel.
While there is no doubt upon the question as to tbe power of the federal court of equity to have imposed such terms as it chose as a condition to granting the injunction, it is equally true that when it bad imposed conditions such as those stipulated in the bond in suit (in the case of Elliott v. Railway Co., now in tbe Kansas City Court of Appeals on appeal), that court had no authority under its rules of practice and procedure, to render a judgment for tbe damages occasioned by the conditions broken, on the dissolution of the injunction, but it must, as it did, leave the obligee then to proceed in a court of law for such damages as were occa
The validity of no statute, treaty or authority exercised under the United States being drawn in question by the relator’s answer in the suit on the bond in the Cooper County Circuit Court that would operate, under article 6, section 3 2 of the constitution of this state, to divest the Kansas City Court of Appeals of jurisdiction thereof, hence, no authority in this court by a writ of prohibition to order that court to stay proceedings therein or to transfer the case here for final disposition on that account, as asired by relator. But relators further contend if it be conceded that the case of Elliott against the railway company was properly sent to the Kansas City Court of Appeals from the Cooper County Circuit Court, and that no federal question is involved, still, under its superintending control over the court of appeals, and other courts of the state, this court, by its writ of prohibition can and should arrest all further proceedings in that court and order the case transferred here, when it is shown that that court has transcended its constitutional limitations and restrictions and assumed to act in disregard of the limits placed upon its power within that jurisdiction; and that, since there no longer exists the remedy of appeal to this court as a means of controlling the action of the court of appeals, and since the constitution has lodged the superintending control over that court exclusively in this, and in the same article provided prohibition as one of the means to effect that end,
Eelator’s contention boldly announced is, that the constitutional requirements above quoted is a limitation upon the power, authority and jurisdiction of the court of appeals, as are those provisions which deny its jurisdiction in cases involving the construction of the constitution of the State and United States. In this we think the relator in error. While it is an unquestioned right of the litigant in that court to have his or her case adjudged according to the last previous ruling of the Supreme Court upon the law and equity involved therein, as it is the constitutional right of all litigants, in whatsoever court of the State his or her case may be assigned, to have it tried and determined according to the law of the land, which means nothing less than the interpretation of the law as finally declared by this court, the interpretation of the law in its application to the given facts of a case, must, of necessity, be left to the court given jurisdiction of the subject-matter of the case assigned to it for consideration and determination. If otherwise, and if as contended by relator, the mere failure of an inferior court to rightfully interpret all rulings of this court, would be authority under its superintending power, and armed with its writ of prohibition, to have certified to it, such cases for final adjudication and determination, the writ of prohibition would but perform the office of a writ of error or the process of appeal, and dispose of, in many instances, the necessity of intervening courts through which cases, under existing provisions of law, must pass, before the opinion of the court of appeals or this
Recognizing the existence as well as the necessity of the constitutional requirement above set out, that harmony might prevail as near as possible in our laws, and that by one fixed standard justice might be administered alike to all litigants, as our courts are now constituted, with the dual system of appeal, that laws will not and can not in all cases be administered alike, is as certain as the evidence of the attempt to attain that desired end by the adoption of the above named
While the virtue of that constitutional provision is to be commended, and its mandatory direction should be obeyed by the court ■ of appeals under all circumstances, still this court by constitutional limitations and restrictions, not less binding upon it than those upon the courts of appeal, can assert its jurisdiction over cases properly in that court on appeal for determination in the first instance, only as provided by section six of the amendment of the constitution of Missouri adopted in 1884, establishing that court and defining its jurisdiction, when “one of the judges therein sitting shall deem any judgment rendered by that court contrary to any previous decision of any one of the said Courts of appeal of the State, or of the Supreme Oourt,” that couvt 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 Oourt, and thereupon this court must rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process.
The essential condition to the assertion of jurisdiction by this court over cases properly in the court of appeals on appeal, is that one of the judges of that court must have deemed the decision rendered therein contrary to some previous decision of either of the courts of appeals of this state or of the Supreme ■ Court. Under those constitutional conditions and limitations only is this court authorized to assertjurisdiction over and to hear and determine a case once properly in the court of appeals, and without those precedent conditions we are denied authority in the premises.
In the recent case of Seaboard Nat. Bank v. Woesten, 144 Mo. 407, certified to this court by the St. Louis Court of
So in the case of Smith v. Mo. Pac. R’y Co., 143 Mo. 33, certified to this court by the Kansas City Court of Appeals, for the reasons as expressed in the order transferring the case here, “One of the judges is doubtful whether or not the conclusions reached in the judgment herein can be harmonized with the opinion of the Supreme Court in the case of Louisiana National Bank v. Laveille, 52 Mo. 380.” This court refused to consider the case, or to attempt to reconcile
The doubt or apprehension of a conflict in the mind of one or all of the judges of the court of appeal; the opinion of the judges of this court, supplemented and fortified by the deep-seated and earnest conviction of the defeated litigant and his counsel, that the conclusion reached and announced by the court of appeals in any given case is in conflict with some previous ruling or decisions of this or either of the courts of appeals, can not oust the court of appeals of its authority over a ease properly before it, or invest this court with jurisdiction to hear and determine the same.
This court has also frequently denied the writ of mandamus to compel inferior courts to render particular judgments upon allegations in the application for the writ of the existence of a state of facts that clearly would have called for the rendition of such a judgment had the law been properly applied, but where the court acting on the first instance in its judicial capacity determined otherwise. For like rea-, son prohibition in this case will be denied, when the reason assigned for its exercise is that the court of appeals has decided the case before it contrary to and in disregard of the last previous ruling of this court in the case of Brown v. Baldwin, 121 Mo. 126, or for that matter any or all other decisions and opinions of this court. The right of the court of appeals to consider and determine a case, when before it,