97 Mo. 331 | Mo. | 1888
The relator, John Bayha, brought a suit in the circuit court of Jackson county against William Taylor and the Armour Brothers Banking Company, asking for judgment declaring null and void two tax-bills issued by the city engineer of the City of Kansas, against property owned by Bayha, to Taylor, in payment for the construction of a district sewer, and held by the banking company as collateral security. Bayha claimed in this suit that these tax-bills were invalid, because the city had no authority under its charter to cause the sewer to be built, but that they were, nevertheless, an apparent lien against the property and a cloud upon his title. The circut court dismissed the petition upon a hearing of the case, and Bayha appealed to the Kansas City court of appeals. Errors were assigned and joined in by the parties, and the case was duly submitted to the court for its decision, and was taken under advisement. While the case was in this position, the respondents, Taylor and the banking company, filed in court, against the objections of Bayha, their suggestion and motion, stating that they had caused the tax-bills, regarding which complaint was made in the suit, to be cancelled by the city engineer in his office, and had deposited them, marked paid, with the clerk of the court for the use of Bayha, and had paid all the costs which had arisen or might arise in the suit, and moving the court to abate and strike from the docket Bayha’s appeal. Bayha resisted the motion, and showed by affidavits that he had not paid the tax-bills, and that he rejected and refused to accept the proffered satisfaction ; that he was prosecuting the suit in the interest of other property-owners against whose property similar bills had been issued,
This is an original proceeding in this court, by which it is sought to compel the Kansas City court of appeals to reinstate a cause which it had refused to hear and determine, and had stricken from its docket. The statement heretofore made sufficiently gives the facts which are to form the basis of the present adjudication. Those facts present for determination two salient questions : First, whether this court, proceeding on the basis of the admitted facts, has the power to control the action of the Kansas City court of appeals in the manner relator demands ; a nd second, whether the facts pleaded by the defendants, in order to induce the action afterwards taken by the Kansas City court of appeals, were such as fully warranted the course taken by that court, and therefore destroyed all ground of complaint on the part of the relator and all occasion for invoking the mandatory' authority of this court. These questions, for obvious reasons, will be considered in inverse order.
As already stated, the relator, by his petition filed in the circuit court, sought to have declared void two tax-bills, on the ground that, being apparently valid and apparently a lien upon his property, they were a cloud upon his title. After hearing the cause, the circuit court dismissed the petition, and the relator
The subject is not altogether free from difficulty. Cases have been instanced to justify the course taken by the court of appeals. Thus, it has been ruled that if a party against whom the decree went in the trial court appealed, and pending the appeal availed himself of that decree, by accepting and receiving a large portion of the money deposited to his use, that, upon the matter being brought to the attention of the appellate court, in the proper way, that he would not be permitted to maintain h is appeal. Atkinson v. Tabor, 7 Colo. 195. So. too, in York County v. Fewell, 21 S. C. 106, both parties took an appeal; but pending those appeals, the attorney for the adverse party served a written notice upon the defendant’s attorneys, consenting to a reformation of the judgment, and it was thereupon held, that, owing to the concession thus made, the appeal of the defendant was disposed of, since the offer made conceded to him all he could obtain by a judgment sustaining his appeal.
In North Carolina, litigation sprang up regarding a slave; pending that litigation, all slaves were by law emancipated and it was ruled that the bill must be dismissed, as there was nothing left before the court but a mere hypothetical case. Kidd v. Morrison, 1 Phil. Eq. 31. Another cause in that state was ruled upon in a similar way. State v. Railroad, 74 N. C. 287. And in still another cause in that state, where it appeared that the parties had settled their differences, before final submission in the appellate court, the
In Faucher v. Grass, 60 Ia. 505, the plaintiff procured a decree enjoining the defendants from carrying-on the blacksmithing business on a lot adjacent to his dwelling, and from this decree the defendants appealed. Pending such appeal, the shop alone was sold by the sheriff, and at the sale C. & H. bought the shop, but did not desire to have the blacksmithing business continued, nor did they desire to prosecute the ' appeal, or to have the same prosecuted for their benefit, the lot alone being owned by one of the defendants, and as the present owners of the shop proposed to submit to the decree, and as the defendants had no longer any interest in the shop, the court refused to determine or adjudicate their rights in the matter, holding that the issues in the cause were dead.
Other cases have been instanced where appeals have been dismissed, because after appeal taken, the plaintiff had purchased the interest of the defendants, and were thus representing adverse interests and conducting the appeal on both sides in the appellate court. Wood Paper Co. v. Heft, 8 Wall. 333; Cleveland v. Chamberlain, 1 Black. 419. And cases have .also been instanced where, after submission in the appellate court, the amount due in one of a number of causes has been paid and in that cause the writ of error has been dismissed. San Meteo Company v. Railroad, 116 U. S. 138. Dakota Company v. Glidden, 113 U. S. 222, was a case where the writ of error was dismissed, because the parties settled and compromised their matters of difference, by making a new agreement which extinguished the judgment appealed from. It is needless to cite other authorities on behalf of respondents, since those already cited are but types of others.
And the special tax-bills, though void, being an apparent lien upon the land, furnished ample ground for the relief plaintiff sought. It has frequently been decided by this court that injunction will lie to enjoin the sale of land whereby a cloud would be cast on the title. Mechanics' Bank v. City of Kansas, 73 Mo. 555, and cas. cit.; North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32; Hays v. Dowis, 75 Mo. 250. See also, Harrington v. Utterback, 57 Mo. 519, and cas. cit. And whatever facts furnish basis for an injunction in such cases will also furnish basis for having the tax-bill.declared void, it being optional with the plaintiff which branch of equitable relief he will seek.
It has been suggested that, in any event, the plaintiff ’s statutory covenant, if broken at all, was broken upon the delivery of his deed (Walker's Adm'r v. Deaver, 79 Mo. 664, and cas. cit.) and. that there could be no recovery from him by his grantee of but nominal damages, and that, as this would leave nothing but costs involved, an appellate court would not entertain jurisdiction upon that sole ground. Granting the correctness of this position, it only enforces the argument that plaintiff was entitled to insist that the court shoulfj make such a thorough disposition of the whole cause' as would .protect him even against nominal damages or costs ; as would do full and complete justice between the parties, before it relaxed its grasp on the res, and its jurisdiction of the cause. Real Estate Sav. Inst. v. Collonious, 63 Mo. 290. Besides, there is respectable authority for saying that the grantor of land, with warranty, has such an interest therein as entitles him, to protect bis warranty, to maintain a bill to remove a cloud on the title of the land granted. Ely v. Wilcox, 26 Wis. 91; Malins v. Brown, 4 Comst. 403; Owen v. Paul, 16 Ala. 130.
As the result of these views, it must be ruled that the plaintiff, notwithstanding the offer made by the defendants, was entitled to have his cause heard and determined by the court of appeals, and that error occurred in striking it from the docket.
II. This brings up for determination the question whether, in the circumstances mentioned, the law furnishes the plaintiff any remedy, and if sq, what that remedy is. As we haye no appellate jurisdiction over the court of appeals, the only remedy, if remedy there be,.is
This view of the. matter leaves open to discussion the question whether mandamus ought to go in the case at bar. There is, perhaps, no subject in the whole range of jurisprudence, where the decisions of different courts, and frequently of the same court, are so conflicting as upon the subject of the writ of mandamus, as. to when the writ shall issue. As Chancellor Kent would say, the law on the subject is in a state of “painful vibration.” It is said in a recent text-book of merit, that the writ will not lie to compel subordinate courts to reinstate appeals which they have dismissed. High Extr. Leg. Rem. (2 Ed.) secs. 191, 247. Among the
In the subsequent case of Ins. Co. v. Comstock, 16 Wall. 258, a case arose in the district court under the bankrupt act, and was decided by that court and the amount authorized an appeal to the supreme court. The case was taken on error to the circuit court, but that court refused to hear the cause on account of lack of jurisdiction, and dismissed the writ, and on error the case was taken to the supreme court, where that court ruled that the circuit court erred, in not taking jurisdiction of the cause; that, owing to this not having been done, the cause could not be reviewed on error by the supreme court, but that mandamus was the appropriate remedy to compel the circuit court to reinstate the cause and to proceed and determine it, Clifford, J., who had delivered the opinion in the former case, remarking in substance that the writ would go to compel. the circuit court to proceed to final judgment in the cause, in order that the supreme court could exercise its power of review given by law, citing, with . approval, Ex parte Bradstreet, 7 Pet. 647, where, in similar circumstances, a like ruling was made through Chief Justice Marshall, the amount involved being also within the jurisdiction of the supreme court. A similar ruling was made in Railroad v. Wiswall, 23 Wall. 507.
In Harrington v. Holler, 111 U. S. 796, the supreme court of a territory dismissed a writ of error because of failure to docket the cause in time, and mandamus was granted on the grounds that there was no final judgment, and that the dismissal of the writ was a refusal to hear and decide the cause.
But, in Ex parte Brown, 116 U. S. 401, where the supreme court of a territory, on a cause being moved there by appeal, on motion of the defendant, dismissed the appeal because the action was at law and could only be reexamined on error, the supreme court held that it was a final adjudication, and that mandamus would not lie, citing, in support of the ruling, Ex parte Morgan, 114 U. S. 174, where mandamus was refused to compel the circuit court to amend a judgment, which it had rendered, and had refused on motion to amend.
In Ex parte Parker, 120 U. S. 737, the supreme court of a territory improperly dismissed an appeal, because it was not duly taken and perfected, but the supreme court ruled otherwise, and compelled the lower court to reinstate the cause and to hear and determine the appeal, Mathews, J., remarking that, the “writ properly lies in cases where the inferior court refuses to take jurisdiction where by law it ought so to do, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof.”
The case of State ex rel. v. Wright, 4 Nev. 119, announcing that if the district court improperly dismisses an appeal from a justice’s court on the ground that the notice of the appeal was not duly stamped, mandamus would not issue to compel that court to reinstate the cause and try it on the merits, seems to have
In Ex parte Lowe, 20 Ala. 330, it was ruled that if an inferior court makes an order which is in plain violation of the legal rights of one of the parties, and by virtue of such order refuses to proceed further in the case, mandamus will go to comp.el the vacation of such order.
In People ex rel. v. Weston, 28 Cal. 639, an appeal was dismissed upon a similar ground as that decided in 4 Nev. supra, and mandamus was denied. A like ruling was made in Francisco v. Ins. Co., 36 Cal. 283. But in Beguhl v. Swan, 39 Cal. 411, where the county court, on motion of the defendant, struck a cause from the calendar, on the ground that it had no jurisdiction, mandamus went to compel it to hear and determine the cause. In a still later case in that state, where the superior court dismissed an appeal because of the insufficiency of the bond taken by the justice, it was ruled that that court could not give itself jurisdiction by holding an insufficient bond sufficient, nor divest itself of jurisdiction by holding a sufficient bond insufficient, but that the order of dismissal must first be annulled by certiorari before mandamus could be awarded. Levy v. Superior Court, 66 Cal. 292.
In New Jersey, there is an apparent diversity of opinion on the subject exhibited, but it is believed to be only apparent. In Wells v. Stackhouse, 2 Harr. 355, where there had been delay in entering an appeal, as required by the rules of the lower court, and in consequence of this delay that court refused to allow the appeal to be entered, mandamus was denied to compel the entry of the appeal, the supreme court remarking that the rule was reasonable, but that if the lower court had acted contrary to, or in disregard of, their own rules, or evidently misapplied them, the result would have been different. In Sinnickson v. Corwin, 2 Dutch. 311,
In Cowan v. Doddridge, 22 Gratt. 458, where a circuit court struck a cause from its docket, mandamus issued. People v. Judges, 20 Wend. 658, holds That, where an appeal was improperly dismissed for insufficiency of bond, mandamus would not lie, however erroneous the dismissal. In People ex rel. v. Judges, 27 Mich. 303, mandamus went to compel the reinstating of a cause, the appeal having been improperly dismissed. In Arkansas, where the circuit court, without any-basis laid therefor, improperly entered an order continuing' the cause, it was contended that, as the court hail acted, its action could not be reviewed except by writ of error; but the supreme court ruled otherwise, holding that it was an abuse of judicial discretion to continue the cause, and mandamus was awarded. Dixon v. Field, 10 Ark. 243.
Where a cross-bill was improperly dismissed, the chancellor having erred as to the proper practice in dismissing the cross-bill before the hearing of the original b ill, the statute on the subject being plain and peremptory, mandamus was granted to compel the setting aside of the order of dismissal, and the restoration of the cross-bill on the docket. Ex parte Thornton, 46
The same diversity of opinion as to when the action of the lower courts, in dismissing appeals, can be corrected by mandamus, is exhibited in England as in this country. . These numerous citations of authorities have been made as showing that the rule of law is by no means well settled that the improper dismissal of an appeal cannot be remedied by mandanms. The weight of the authority and certainly of reason would seem to say that, if the lower court has plainly erred on a point of practice, either by misapprehending its own rules or a plain rule of law, and in consequence has dismissed an appeal, mandamus will lie to correct and remedy the erroneous and arbitrary exercise of its discretion, notwithstanding it has acted. Tapping on Mand. 14. Of course, this line of remark is not intended to apply, nor can it apply, to cases like that of State ex rel. v. St. Louis Court of Appeals, 87 Mo. 374, where the court of appeals affirmed the judgment on the ground that the motion for judgment against a stockholder was not incorporated in the bill of exceptions ; for there a final judgment was rendered in the usual course of judicial procedure, and however great error was committed therein furnished no ground for mandamus.
There are cases where courts of last resort have no original jurisdiction to issue writs of mandamus to inferior courts, and can only issue such writs in the exercise of their appellate jurisdiction and in no other. This is true of the federal courts. McIntyre v. Wood, 7 Cranch, 504; Bath County v. Amy, 13 Wall. 244; Graham v. Norton, 15 Wall. 427; High Ex. Leg. Rem. sec. 29. And it is true, also, of some of the state courts.
But as already shown, the constitution has conferred on this court more enlarged powers, and consequently the rulings on the point in courts of other jurisdictions, not possessed of such ample powers, can have no application here. And whatever the rulings of other courts may have been in respect to the issuance of writs of mandamus, the rulings of this court, heretofore made, establish that this court will award its writs of mandamus: Where the St. Louis court of appeals refused to take a bond for an appeal to this court on the ground that the appeal having been granted, that court had no further jurisdiction of the cause. State ex rel. v. Lewis, 71 Mo. 170. Where a circuit court refused to enter judgment on a verdict, but granted a new trial. State ex rel. v. Adams, 76 Mo. 605. Where a trial court ordered a cause to be “ dropped from the docket.” State ex rel. v. Cape Girardeau Court of Common Pleas, 73 Mo. 560. Where a trial court determined it had no jurisdiction of a criminal cause, by reason of the unconstitutionality of a statute and ordered the cause transferred to another court. State ex rel. v. Laughlin, 75 Mo. 358. To compel the judge of a trial court to enter a judgment on a verdict, which he had refused to receive, because the jury by that verdict found for the defendants, but required them to pay the costs. State ex rel. v. Knight, 46 Mo. 83. In Castello v. Circuit Court, 28 Mo. 59, it is said : “ lithe circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the- statute, that was a preliminary 'objection upon a point of law which this court can review upon a wfit of mandamus ; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.” See also, Miller v. Richardson, 1 Mo. 310.