113 Mo. 42 | Mo. | 1892
This is an application by relator for a writ of prohibition to prevent respondent from granting a new trial in the case of the State v. Antone Sansone, and from trying the case again.
Afterwards Sansone applied to this court for a mcmdcmus to compel Judge Wofford to order the election of a special judge to pass on his bill of exceptions, which was granted on the fourth day of October. The opinion rendered in that proceeding, which was entitled State ex rel. Sansone v. Wofford, will be found in 111 Mo. 526. In compliance with the ruling of the. court in that proceeding, Judge Wofford, on the twenty-sixth day of October, ordered the election of a special judge “to take up and dispose of said cause according to law,” and on the twenty-ninth day of
Respondent in his return to the provisional writ of prohibition, among other things states that Sansone, in March, 1892, filed a motion to strike from the files of the case an exhibit accompanying counter-affidavits presented by the prosecuting attorney in relation to the motion for new trial, which the court never disposed of, and, in support of the jurisdiction which he assumed to exercise in granting a new trial and which he claims he possesses to retry the case, he states “that no bill of exceptions has been presented which has bean agreed upon by the state and defendant herein or their attorneys, and no bill of exceptions has been'tendered and shown to this respondent to be correct, and that owing to the fact that disputed questions of fact are presented in the record of which the respondent has no personal knowledge and could acquire none and that motions have been left undecided by Judge White and as it is impossible for the respondent to satisfy himself of the correctness of any bill of exceptions in said cause, he, therefore, granted the defendant Antone Sansone a new trial in order that full and complete justice might be done.7’
I. The rule was well settled in this state, prior to 1889, that where a judge who tried a case went out of office before passing on the motion for a new trial or
Section 2171, Revised Statutes, 1889, quoted in the opinion in State ex rel. v. Wofford, supra, was intended to abolish and did abolish this rule so far as it applied to a bill of exceptions, in order to secure to the party his right to a bill of exceptions and to avoid the expense and delay of another trial. The status of this case then is precisely what it would have been had the judge who tried the case not died, and the jurisdic-' tion of respondent to grant a new trial must be tested by the same principles as would have applied if Judge White still presided over the court.
II. It is conceded on all hands that if respondent has jurisdiction to grant or refuse a new trial in the case named, prohibition will not lie. There is a well recognized distinction between an ,act done in the exercise -of jurisdiction and act done where no juris-dicton is given. In the former case the act, however erroneous it may be, is not void and cannot be attacked collaterally; whereas in the latter case it is absolutely void and can be .called in question directly and collaterally.
III. This brings us therefore to the controlling question in the case,' which is, had the respondent jurisdiction to grant Sansone a new trial under the circumstances? It seems very clear to us that he had not. The court, presided over by Judge White,-overruled the motion for new trial and rendered final judgment against Sansone by sentencing him to the penitentiary, and the term of court at which this was done has expired. When the term expired the jurisdiction of the court to grant a new trial ceased, without
This court has even gone farther than that and has held that a motion for new trial, filed after the expiration of the four days allowed for filing it, cannot be considered by the court. State v. Brooks, 92 Mo. 591. Here Sansone filed one motion for a new trial, which was overruled,.and the court adjourned for the term, and, to permit respondent to entertain the motion he filed on the nineteenth day of November, and grant him a new trial, would virtually abrogate section 2171 supra, and render it nugatory; for, as was well said in State ex rel. v. Wofford, supra, the same difficulties in passing upon a bill of exceptions would be encountered by the regular successor of the deceased judge as by a special judge. Neither one is conversant with the proceedings before and rulings of the judge who tried
There is no force in respondent’s contention that ■Judge White did not rule on Sansone’s motion to strike from the file's an exhibit accompayning affidavits presented by the state in relation to the motion for new trial. If that motion was not disposed of by the overruling of the motion for new trial and the sentence pronounced by the court, and .error was committed in not disposing of it, such error is reviewable by this court on appeal or writ of error, but not by respondent, who has no jurisdiction to review the rulings or alleged errors of his predecessor in this case.
IY. It is unnecessary for us to decide whether the orders made by Judge Wofford are valid or not. Those orders will be before this court for review if the -case is brought here by appeal or writ of error. We will say, however, that we do not wish to be'understood by any language used in State ex rel. v. Wofford, supra, ■as holding that orders made by a disqualified judge by the consent of defendant or for his benefit are void. All we intended to decide there was that orders made by such a judge over defendant’s objections or not by his consent, where they are not favorable to him, are void. Whether the application of the rule shall extend beyond this we leave for future consideration and decision.
Y. The conclusion we have reached in this case ■and the one we intended to reach and thought we had reached in the Wofford case is, that the special judge has no jurisdiction to do anything except to pass upon and sign a bill of exceptions. Whether it is now too
The writ of prohibition will be made peremptory..