143 Mo. 33 | Mo. | 1898
The suit is in two counts on two bills of lading issued, as alleged, by defendant to one Theodore Nathan for two carloads of grain and by said Nathan indorsed and delivered to plaintiff. The
The case is clearly one within the jurisdiction of the court of appeals. That being so, the Constitution makes but one provision under which this court can
This section has been brought before this court for construction • on several occasions in which an effort was made, by mandamus, to compel the courts of appeals to certify a cause to this court. State ex rel. v. Philips, 96 Mo. 571; State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Rombauer, 125 Mo. 635. This is, we believe, the first case in which the sufficiency of an order of transfer, made by the court of appeals, under the provisions of said section, has been questioned.
To give this court jurisdiction, it must appear from the record that one of the judges of the court of appeals deemed the decision therein rendered contrary to a previous decision of one of the courts of appeals or the Supreme Court. This record shows that “one of the judges is doubtful whether or not the conclusion reached can be harmonized with the decision of the Supreme Court77 in a case named. The order follows the opinion of Judge G-ill, who says: “While concur
In this case the court has made the order. But the order is not the fact that confers the jurisdiction upon this court. Jurisdiction is conferred by the fact that one of the judges deems the decision contrary to a former decision; the jurisdiction vests whether an order is made or not. If the order was made for the reason appearing upon the record that one of the judges deems the decision contrary to a former decision of one of the courts, we might presume the existence of the jurisdictional fact, though the record did not otherwise show it. But when the judgment shows upon its face that no cause for the transfer existed, that the jurisdiction of the Supreme Court did not vest, we have no right to presume the contrary. “Within the sphere of its constitutional authority, a court of' appeals has the same right to hear and finally determine questions of law involved in the case before it, as the Supreme Court has in causes which belong here.” State ex rel. v. Smith, 105 Mo. 6. The court of appeals is given no discretion to shift its jurisdiction to the Supreme Court, no matter how important the question, or how great the necessity of having it settled by the highest judicial authority of' the State. It must assume the responsibility the Constitution places upon it. The judge who differs from his associates in the application of decided cases must do so judicially in order to defeat the jurisdiction of his court, and vest it in the Supreme Court. He has the right and it is his duty to interpret and apply the
The foregoing opinion, prepared by our late associate, Macfarlane, P. J., having been duly considered, is adopted as the opinion of the