| Mo. | Mar 17, 1903
This is an original proceeding in this court by relator to obtain a peremptory writ of mandamus directing the judges of the Kansas City Court of Appeals to reinstate the cause of Nellie Campbell .against the city of Stanberry,. and to hear and determine an appeal in said cause, heretofore certified to said court and by it dismissed. The following summary of the facts will suffice for. a proper understanding of the opinion:
In 1896 Miss Nellie Campbell brought her action against the city of Stanbérry for damages resulting to her from a fall into an excavation in one of the public streets- of said city, and recovered judgment against said city for $2,500 at the September term, 1900, of the circuit court of Gentry county. Prom that judgment the defendant city appealed to the Kansas City Court of Appeals.
. At the September term, 1900, of the circuit court, after the motions for new trial and in arrest of judgment had been filed and overruled, leave was given defendant to file a bill of exceptions during the December term, 1900, of said court, and afterward during the December term of said circuit court and on December 22,1900, the defendant filed its bill of exceptions, signed and sealed by the judge of said court. Thereafter, to-wit, on February 8, 1901, and more than fifteen days before the March term, 3901, of the Kansas City Court of Appeals, a certified copy of the record of the judgment of the circuit court, showing the term and day of the term, month and year at which the same was rendered, together with the order granting the appeal to the Kansas City Court of Appeals, was filed in the office of the clerk of the said Court of Appeals. After-wards the said cause was duly set down for hearing in said Court of Appeals on the--day of October, 1901, and continued by agreement until March term, 1902, of said court. Prior to said appeal the Kansas City Court of Appeals had adopted and promulgated
“In all cases the appellant or plaintiff in error shall file with the clerk of this court on or before 'the day preceding the day on which the cause is docketed for hearing, five copies of a printed abstract or abridgment of the record in said cause, setting forth so much thereof as is necessary to a full understanding of all questions presented to this court for decision.” Said rule further provides, that “the appellant or plaintiff in error shall also deliver a copy of said abstract to the attorney for respondent or defendant in error at least twenty days before the day on which the cause is docketed for hearing.”
Another ride of said court numbered 18 provides, “If any appellant or plaintiff in error, in any civil cause, shall fail to comply with the provisions of rule numbered 15, the court when the cause is called for hearing, will dismiss the appeal or writ of error, or at the option of respondent in error, continue the cause, at the costs of the party in default. No oral argument will be heard from any counsel failing to comply with the provisions of rule 15.”
On February 25, 1902, the appellant, the city of Stanberry, filed in the office of the clerk of the Kansas City Court of Appeals, five copies of an abstract of record in said cause which abstract contained:
First, the petition, the answer and reply, the same being all the pleadings in said cause;
Second, the statement as follows:
Showing a history of the trial of the cause and the finding of the verdict by the jury under the instructions of the court. The jury found a verdict for the plaintiff in the sum of twenty-fivé hundred dollars.
Third, under the caption of “ The Abstract of Record” a full and complete copy of the bill .of exceptions as filed in the circuit court of Gentry county, including a statement that the cause was tried at the September term, 1900, of the circuit court of Gentry county, Mis
Indorsed as follows: “Filed December 22, 1900, Dale S. Flowers, Clerk Circuit Court.” That said motion for a new trial asked the court to set aside the verdict, because against the law and the evidence and other reasons, and said motion in arrest states that the judgment upon the record is erroneous and the court erred in overruling defendant’s motion for a new trial.
Afterwards on said 3rd day of March, 1902, said cause was argued before the Kansas City Court of Appeals on behalf of both appellant and respondent and the said cause was thereupon submitted to said court; and afterwards on April 7, 1902, said Kansas City Court of Appeals entered an order, dismissing the said cause ’from said court on the ground as given by the court, in its opinion hereinafter noted.
Afterwards on April 10, 1902, and at the same term of said court, the appellant filed in said court a
The abstract of record above noted did not contain a copy of the judgment, or date of rendition or a recital in narrative form of its rendition, amount and date, but the certificate required by the statute of this State, to-wit, section 813, Revised Statutes 1899, filed by the appellant in said cause in the Kansas City Court of Appeals, did contain all of the facts required by that section.
On or about February 1, 1902, the city of Stan-berry served on the plaintiff’s attorney of record a copy of said abstract, together with a copy of appellant’s brief and statement in the case. Respondent filed no counter abstract and made no motion to affirm the judgment for failure to file the certificate of judgment or complete transcript, either before the day the cause was set for hearing or when it was called for argument, but in their brief counsel for respondent made the point:£ £ The appellant’s abstract of the record is fatally defective. It does not show any final judgment. ’ ’
On March 3, 1902, the cause was argued' before the Court of Appeals and submitted to the court. On April 7, 1902, the Court of Appeals made an order dismissing the appeal in said cause and in an opinion by the court assigned the following reasons:
The respondent contends that, as there is no final judgment as shown by the appellant’s abstract, the appeal should be dismissed. It appears from the appellant’s abstract that there was a trial before a jury and verdict for the respondent; that a motion for a new trial was filed, which was overruled by the court; and that within the four days appellant*627 filed a motion to arrest the judgment. But it is nowhere stated in the abstract that a judgment was rendered, and there is no allusion to a judgment, other than that a motion in arrest was filed, overruled, and the action of the court in that respect excepted to. It is well settled that an appeal lies only from a final judgment (Holloway v. Holloway, 97 Mo. 639, 11 S. W. 233,10 Am. St.' Rep. 339), and the abstract should show such a judgment (Mills v. McDaniels, 59 Mo. App. 331" court="Mo. Ct. App." date_filed="1894-11-05" href="https://app.midpage.ai/document/mills-v-mcdaniels-6617815?utm_source=webapp" opinion_id="6617815">59 Mo. App. 331). It follows, therefore, that the appeal should be dismissed, which is accordingly done.
Afterwards .at the same term the appellant filed a motion to set aside the said order and reinstate the case, which motion the court overruled on June 2, 1902, and afterwards on November 26, 1902, applied to one of the judges of the Supreme Court for an alternative writ of mandamus to the Court of Appeals requiring it to reinstate said cause. The return of the Court of Appeals, after stating all of the foregoing facts in substance, further pleads that it sent down its mandate and that proceedings to enforce the circuit court’s judgment by mandamus against the city council of Stanberry had been begun and were pending.
I. The constitutional power of this court to require one of the Courts of Appeals to exercise its jurisdiction by hearing and determining a cause of .which it has jurisdiction, we regard now as fully settled. In addition to the jurisdiction conferred in the Constitution on this court by section 3, article 6, giving it “a general superintending control over all inferior courts” and “power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other remedial writs, and to hear and determine the same,” it has the special authority granted by section 8 of the amendments of the Constitution adopted in November, 1884, to-wit, “superintending control over the courts of appeals by mandamus, prohibition and certiorari.” [State ex rel. Bayha v. Philips, 97 Mo. 331" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/state-ex-rel-bayha-v-philips-8009488?utm_source=webapp" opinion_id="8009488">97 Mo. 331; State ex rel. v. Smith, 172 Mo. 446" court="Mo." date_filed="1903-03-04" href="https://app.midpage.ai/document/state-ex-rel-chicago-rock-island--pacific-railway-co-v-smith-8014552?utm_source=webapp" opinion_id="8014552">172 Mo. 446.]
This certificate, as Judge Brace says, is the basis of all the proceedings in the Court of Appeals and in this court when an appeal is taken by the short method provided in section 813, Revised Statutes 1899, and it has uniformly been ruled that an appeal would not be dismissed for a failure to set out the judgment in the abstract when such a certificate has been filed.
This certificate being on file, ‘if it becomes necessary for any purpose to consider the judgment itself, it is an easy matter to read the certificate itself. So that while appellant might very properly have made a brief statement in narrative form of the rendition of the judgment and its amount, as was done in the Rock Island case, supra, the reason of our conclusion in that case equally applies to the case before us, and as the judgment of dismissal was based solely on this ground, we think the cause was improperly dismissed in this case also.
II. One further ground is urged by the respondents herein that was not presented in the Rock Island case, and that is the laches of the appellant in presenting this application. This is based upon the fact that the appellant waited until the mandate went down to the circuit court and proceedings were there commenced to enforce the judgment by mandamus against the city which were and now are pending in the Gentry Circuit Court. As to this point it is sufficient to say that the appellant availed itself of every known remedy to induce the Court of Appeals to reinstate the case in that court, and was utterly powerless to prevent the issuing of the mandate.
It will be noted that the rights of no third parties are involved in this proceeding. It remains a controversy between the original parties to this action. The mandate was sent down to the Gentry court only a few days before the final adjournment of this court at its April term, 1902, and this application was made at the October term, 1902, the next term after the mandate
As all the other propositions are so fully discussed in the opinion of Judge Brace in the Rock Island case, in Banc, We deem it unnecessary to extend this opinion to greater length. It results that a peremptory writ must be awarded to reinstate the appeal and hear and ■ determine it.