264 Mo. 661 | Mo. | 1915
Lead Opinion
This is an original proceeding-instituted in this court praying for a writ of certiorari to review the record of the Springfield Court of Appeals, in the case of Nick Gooch, respondent, v. C. G. Gilman, O. B. McKnight, H. C. McElhaney, Bart Morrow and C. W. McAbee, appellants, relators here, and asking that the judgment of the Springfield Court of' Appeals be quashed, etc.
The facts as here presented are few and undisputed.
On the 2nd day of May, 1914, Nick Gooch recovered a judgment for $1406 against the relators in the-circuit court of Jasper county. The defendants there,, the relators here, took an appeal to the Springfield Court of Appeals, but failed, as counsel for respondents here contend, to file in that court a certified copy of the judgment and order granting the appeal; also failed to pay the $10 docket fee in the appellate court.
On October 5, 1914, the October term of the Court of Appeals convened; and on September 22, 1914, the:
On the. 20th day of October, same year, relators ■ here filed in the Court of Appeals, a motion for a rehearing, which was by that court overruled, and thereupon the relators filed in this court their petition for a writ of certiorari, which was duly issued and returnable to the present January call of this court.
I. The facts of this case, as previously stated, are undisputed-, and upon those facts there are here presented but two legal propositions for determination, namely:
First: Has this court the constitutional power or authority to review the errors (not the jurisdiction) of the various Courts of Appeals of the ex x • , n , • -mi otate, upon writs of certiorari? and second: If so, did the Springfield Court of Appeals correctly dispose of the case of Gooch, respondent, v. C. G. Gilman et al., appellants, pending in that court, according to the last rulings of this court?
Attending the first: This question is like Banquo’s ghost, it seems as though it will not down, and is being continually presented here for reconsideration, ever •since the ruling of this court in the cases of State ex rel. v. Broaddus, 238 Mo. 189, and Curtis v. Sexton, 252 Mo. 221, overruling a long list of opinions delivered by
While I have not changed my opinion as regards the soundness of the law as announced in the earlier cases, nor as to the unsoundness of the rule announced in the cases just mentioned, however, since the court adheres to the latter doctrine, it seems to me that it is exceedingly unwise to have this question continually agitated in this court.
The fundamental principles of jurisprudence and the rules of procedure should remain firm and unchangeable, except by legislative enactment, for there is nothing which subjects the courts of the country to more just criticism than instability and vacillation in the rulings regarding their jurisdiction and power and authority, as well as to the rides of procedure.
After these years of acquiescence to the new rule by a majority of the members of the court, at this late date to overturn the present rulings upon this question and return to the former doctrine, would in my opinion be as unwise as the record of this court for the last few years clearly shows the former change was unwise and harmful to jurisprudence.
But since the bench and bar and counsel and litigants have readjusted themselves to the new procedure, a change back to the old rule would, to say the least, produce as much evil as good, if not more, and raise a new conflict in the ordinary administration of justice, which would take years to settle and to restore confidence in the stability of the courts, and the proper administration of the law.
For the reasons stated I am of the opinion that it would, at this late day, be unwise to again change front upon this all-important question; and I am therefore of the opinion that later rulings should be adhered to.
II. Returning to the second proposition presented for determination, namely, whose duty is it to file the
This court has repeatedly held that that duty rests upon the appellant and that he cannot shift it upon the clerk. [Caldwell v. Hawkins, 46 Mo. 263; State v. Dempsey, 168 Mo. App. l. c. 300; Secs. 2047, 2048 and 2049, R. S. 1909; Rule 28, Supreme Court, Oct. 1909; Crawford v. Railroad, 171 Mo. 68, l. c. 77; State ex rel. v. Gibson, 187 Mo. 536, l. c. 558.]
That being true, and the record showing that he did not perform that duty within the time prescribed by the statutes and rules of this court, we are of the opinion that the Springfield Court of Appeals properly dismissed the appeal.
We are therefore of the opinion that the writ of certiorari heretofore issued by this court was improvidently done, and for that reason should be quashed; and it is so ordered.
Concurrence Opinion
(Concurring.) — I. I concur fully in the second paragraph of the learned Chief Justice’s opinion. I also concur in the first paragraph wherein he states that it would be unwise to depart from the rule announced in the recent cases of State ex rel. v. Broaddus, 238 Mo. 189, and Curtis v. Sexton, 252 Mo. 221, but I concur for a different reason from the one assigned by the Chief Justice. I concur for the reason that under the Constitution there can be no doubt about the right of this court to use the writ of certiorari, to quash the record of a Court of Appeals, whenever such court reaches its'
Tbe question suggests a bird’s-eye-view of Missouri’s judicial system. In tbe briefs it is suggested that some of our previous cases were written by judges wbo were members of tbe constitutional convention of 1875, and that they were blessed with lights which we do not have. No man bolds in higher regard tbe distinguished judges wbo have written upon tbe question than tbe writer. This applies to those wbo were not in tbe constitutional convention of 1875 as well as those wbo were. But this is largely by tbe wayside.
When tbe Constitution (both tbe original and tbe amended) is read as a whole, it is clear that tbe framers contemplated a judicial system, with one Supreme Court, at tbe bead of that system. It is clear that they contemplated that as to all doctrines of both law and equity there should be •one final arbiter, and that arbiter tbe body which they chose to designate as tbe Supreme Court. It was never •contemplated that one doctrine of law or equity should apply in certain appellate jurisdictions, and another and different doctrine in other appellate jurisdictions. Throughout tbe entire document (both tbe original and amended) runs tbe idea of harmony in tbe law. Not only so, but with this idea is the further one that there has been vested in tbe Supreme Court tbe power to enforce harmony of decision, in so far as they touch upon ■doctrines of law or equity. This is as it should be, be- ■ •cause without a power lodged in some one body, harmony in tbe doctrines of tbe law announced is but an iridescent dream. It is all well enough to say that tbe judges of tbe Court of Appeals are just as conscientious in tbe performance of their duties as are tbe judges of this court (a question cheerfully conceded) and that they will certify cases here when occasion re
II. By the organic law (Art. 3, Constitution of 1875) the powers of government were committed to three separate and distinct magistracies. By the same instrument, article 4, the legislative power, with designated restrictions, was confined to “The General Assembly of the -State of Missouri.” By the same document, section 1, article 5, the executive p0wer was vested in the Governor and other named and designated officers. By article 6 me judicial power “as to matters of law and equity” is vested in the Supreme Court and other specifically designated courts. ■ Section 3 of article 6 says:
“The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. ’ ’
This is the original section in the Constitution of 1875. By section 12 of the same article the St. Louis Court of Appeals was created and given appellate jurisdiction in all cases within its then territory (city of St. Louis and the counties of St. Charles, Lincoln and Warren), but the decision of that court was not final in the following cases:
“In all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hun- ' dred dollars; in cases involving the construction of the
As to cases falling within the foregoing class, an appeal would lie to the Supreme Court, or a writ of error would run from this court. This outlines the situation of the courts under the original Constitution of 1875. It should be noted, that up to this time, there was no provision in the Constitution which required the St. Louis Court of Appeals (the only one then created or existing) to follow the rulings of the Supreme Court upon questions of law or equity. It remained for the people by the amendment of 1884 to put in this limitation upon the constitutional power of the St. Louis Court of Appeals. Cases decided prior to the amendment of 1884 can therefore have no real bearing. The distinguished judges of this court, who were members of the Constitutional Convention, did not wrestle with that question, and their views of the question are not, for that reason, founded upon any greater light or insight into the question than we more humble ones who have succeeded them have. The people chose to add to the instrument which was their handiwork, and the question now is to what extent have they added. By section 5 of the amendment of 1884, the Supreme Court was given sole appellate jurisdiction in all the cases specifically named in section 12 of article 6 of the Constitution. Section 6 of the amendment of 1884 thus reads:
“When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary
Although by section 3 of article 6, of the original Constitution “a general superintending control over all inferior courts” was given the Supreme Court, yet the constitution-makers in 1884 (the people) were determined to leave no doubt that such court had. superintending control over the Courts of Appeal, and adopted section 8 of the Amendment of 1884, which reads:
“The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari.”
Thus it will be seen that this court is not only given the superintending control of the Court of Appeals, but the Constitution names the writs by which we can exercise this power and one of these writs is the writ of certiorari. Under this power if a Court of Appeals refuses to act, when it should act, we can by mandamus compel it to act. If such a court threatens to act when it has no lawful authority to act, we can by writ of prohibition stop it from acting, and we maintain further, that if such court acts, but in so doing goes beyond its constitutional power, and such is apparent upon the face of its record, then by the other writ of superintending control, i. e., the writ of certiorari, we can have their record certified to this court and quashed.
The trouble with the long line of previous cases is, that they emphasize section 6 of the Amendment of 1884, and overlook entirely section 8 of the same amendment. Section 6, it is true, makes provision for the Courts of Appeals to certify cases here, but this is not the exclusive method. Section 8 is the other method, and the one given to this court. The Constitution should be construed so as to give effect to both sections. The construction we give so does,- but the construction of these old cases excludes section 8, supra. Construed as a whole the Constitution gives two remedies: (1) If a judge of the Court of Appeals thinks the decision of his court contrary to the decision of this court, or to a decision of another Court of Appeals, such judge may have the case certified to the Supreme Court; and (2) if the opinion is contrary to the latest ruling of the Supreme Court, and thereby violative of the Constitution, then the Supreme Court may, under section 8, quash the record by first having it brought here by our writ of certiorari. This construction gives full force and effect to all of the Constitution. The opinions in the early cases gave no effect to that part of section 6 which says that the Courts of Appeals must follow our latest rulings, or-section 8, which gives us superintending control by certiorari.
We do not urge the view (because not necessary in this .case) that we can use our writ of certiorari, given by the Constitution as one of the writs of superintending control, for the purpose of an appeal to correct mere errors in the Court of Appeals, but what we do urge is, that if the record of the Court of Ap7 peals shows that it has gone beyond its constitutional powers in any given case, we can quash that entire rec7 ord, because it is one made without jurisdiction or corn stitutional authority. There are at least two classes of error which may be committed by a Court of Appeals,. First, it may err and hold that it has jurisdiction, when under the organic law it has no such jurisdiction. This would be an error of judicial judgment, but no member of this court, at this late day, would hold that this court with its power of superintending control cannot prohibit such court from further proceeding with a cause over which it had erroneously assumed jurisdiction. Again, if such court refused to assume jurisdiction, when the Constitution gave it jurisdiction, such refusal would be an error of judgment, yet it cannot be contended that this court has not the power by the writ of mandamus to compel it to act. In other words the .final arbiter of the jurisdiction of a Court of Appeals is the Supreme Court. They may guess (judicially guess) at the jurisdiction, but the last and final guess upon that question is lodged with this court. So, too, by the writ of certiorari there is another remedy. If upon the face of the whole record (which includes the opinion under the Constitution) it appears that the ■Court of Appeals was without, jurisdiction, in the first
In my judgment the error which crept into the opinions relied on by counsel and coming from this court prior to 238 Mo. is that these opinions overlook the constitutional limitation upon a Court of Appeals in deciding a case. If a Court of Appeals in deciding a case fails to follow the last previous ruling of this court upon the doctrine of law or equity involved in its case, the moment such act occurs such court has overstepped its jurisdiction, and is then as much under the superintending control of this court by proper writ as if it had never possessed jurisdiction. The Constitution has created the lines within which- such courts must travel in deciding a case, and when such court oversteps these fixed lines, it is exceeding the jurisdiction granted by the Constitution creating the court. Its act is in excess of constitutional and legal authority, and therefore beyond its power or jurisdiction to do. So after all it is a simple question of jurisdiction or power. A Court of Appeals can’t try a case over which the Constitution gives it no jurisdiction. If it undertakes to do so it proceeds without right, power or jurisdiction, and although such act may be called error, yet it is error affecting jurisdiction, and can be reached by this court under our power of superintending control. Nor can such court decide a case in a way not authorized by the Constitution. The organic law says that the last ruling of this court must be followed by such court. If such court disregards this constitutional provision (whether purposely or otherwise) its act is beyond its constitutional power, right or jurisdiction. As the act has been done, and appears upon the face of the record, the remedy is by our writ ■ of certiorari, by which, in superintending such court, we may quash the record thus made. To do so would be but keeping such court within the jurisdiction conferred upon it by the
It would he but idle ceremony to say that the Constitution demands of these courts to follow our latest rulings, and yet say there was no power to compel them to regard this constitutional inhibition upon their power. Jurisdiction is but the right or power to hear and determine. It may be limited by the same instrument which grants it. If the limitation is violated the act is as much without right or power as if there had been no grant. The Constitution fixes a pathway of decision for these courts. If they get out of that pathway, they are without constitutional power or jurisdiction.
III. If it be true (and as I understand it, it is contended in these previous cases) that section 6 of the Amendment of 1884 was ordained for the single purpose of providing for the certification of cases up to us by the Courts of Appeals upon their violation solely, why append at all to said section the last two lines, which I italicised supra? These lines read:
“And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals
Obviously, the language used in the first eight lines of the section was sufficient to fix and had already fixed on the Courts of Appeals the duty in the contingency named, of transferring cases up to us, of their volition. The last two lines of this section do
For these reasons I concur in paragraph one of the opinion. In paragraph two of the opinion I concur fully. The result is that I concur in the result of the opinion, but for different reasons as herein expressed.
Dissenting Opinion
DISSENTING OPINION.
I.
A writ of certiorari was sued out in this court to quash the judgment of the Springfield Court of Appeals; The proceeding was instituted here
The question which goes to the marrow of this controversy cannot be stated with more conciseness and clearness than it is expressed in the learned majority opinion of Woodson, C. J., in the following terms:
‘‘Has this court the constitutional power or authority to review the errors (not the jurisdiction) of the various Courts of Appeal of the State upon writs of certiorari?”
Judged by case law, as it has been expounded by both Divisions of this court and by this Court in Banc in an Unbroken current of authority extending over thirty-five years, there could be put one answer to the question, which is, that no such power of review could be exercised without altering the terms of the present Constitution and usurping powers which were taken away from this court by that instrument. [In re Garesche, 85 Mo. 469; State ex rel. New York Life Ins. Co. v. Philips, 96 Mo. 570; State ex rel. Dawson v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. Teasdale v. Smith, 101 Mo. 174; State ex rel. Scott v. Smith, 104 Mo. 419; State ex rel. Hyatt v. Smith, 105 Mo. 6; State ex rel. Third National Bank v. Smith, 107 Mo. 527; State ex rel. Giovanoni v. Rombauer, 125 Mo. 632; State ex rel. Stevens Lumber Co. v. Smith, 129 Mo. 585; State ex rel. Lancashire Insurance Co. v. Rom
There was no break nor shadow of turning in the' doctrine announced in those cases until the ruling in State ex rel. Curtis v. Broaddus, 238 Mo. 189, where the opinion of "Brown, J., was adopted by a divided court.
Tested by an analysis of the language and purpose of the Constitution, there can be no question as to the lack of poioer in this court to use its writ of certiorari as a substitute for an appeal or writ of error so as to reach the causes within the final appellate jurisdiction of the Courts of Appeals.
Let us glance briefly at the terms of the Constitution. Section 5 of the Amendment of 1884 took away from the Courts of Appeals the intermediate appellate jurisdiction which they' would have of all causes ultimately reviewable by the Supreme Court under the Constitution before that amendment, and vested that transported jurisdiction exclusively in the Supreme Court as if it had been acquired by a direct appeal or writ of error. It left untouched the final jurisdiction vested by section 12 of article 6 of the Constitution in the St. Louis Court of Appeals, and termed it “final appellate jurisdiction” and required the Supreme Court to transfer all cases' falling within its scope, to the St. Louis Court of Appeals (Section 19, article 6) and afterwards to transfer similar cases to the Kan
“Sec. 6. "When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pending the same term and not afterward, certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals.”
“Sec. 8. The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari
The one (section 6) is designed to harmonize “erroneous” decisions, the other to harmonize jurisdictional decisions, and the two combined were to be used to bring about a harmonious body of jurisprudence in
“And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals.”
This was added to clarify and perfect the section under review in two ways:
First, to show that the dissenting judge must compare the opinion of his brother with the “last” previous ruling of the Supreme Court and not with “any” former decision.' A previous clause of this section would permit such judge to state that the decision of his court was contrary to “any” previous decision, etc. The latter clause was to render certain the meaning of the first, and to make it the duty of such judge to restrict his comparison of the opinion of his court, to the last previous ruling of the Supreme. Court. This must be so, for otherwise, under the former, clause of the section, a judge of the Court, of Appeals might have caused a case to be certified here because it was contrary to some prior decision of this court, which.had been overruled by its “last previous ruling.”
Second, to furnish a body of legal doctrine for the use of the Courts of Appeals, in the decision of causes
II. ■
The second section of the Constitution above quoted gives this court the right to issue a certiorari to the Courts of Appeals. Not having the right, under the Constitution, to convert that writ into a medium for appellate jurisdiction, the question is what function is left to it when directed to the Courts of Appeals? Certiorari like mandamus and prohibition is a prerogative writ and inhered in the King’s Bench in England from the time that tribunal emerged from the chaotic conditions of the judiciary by the erection and division of courts which took place some time after the Norman Conquest. Originally the King sat in person with his justices in that court that the fiction might obtain that .all justice flowed from the Royal Fount. [Bacon’s Abridgement, Titles: Certiorari, Mandamus and Prohibition.] Its function was the removal of the record of inferior courts for review. With the changes necessitated by the different judicial system of this country, it is now employed by our courts of general jurisdiction as well as of last resort in aid of their superintendeney of inferior tribunals and boards. In Missouri, it is a writ issuable by the circuit court, as well as the appellate courts. [Constitution, art. 6, sec. 23; St. Louis County Court v. Sparks, 10 Mo. 117; State ex rel. Jones v. Laughlin, 73 Mo. 443; State v. Daniels, 66 Mo. 192; State ex rel. v. Edwards, 162 Mo. 660;
Its normal scope is to quash proceedings had without or in excess of jurisdiction, or if within the jurisdiction of the inferior court which are not correctible by appeal, or writ of error. It is not contended, in the learned opinion of my brother G-raves, filed to fortify the majority opinion in this case, that the writ is available under our Constitution against the Courts of Appeals, except upon a showing of record that such courts are without jurisdiction or have exceeded their jurisdiction in the rendition of their judgment. Hence, the burden of his argument is that such courts failing to follow the “last previous ruling” of this court thereby failed of any jurisdiction and their judgments are quashable as simple nullities. This narrows the question to a single inquiry.
Is a jurisdiction once constitutionally vested in the Courts of Appeals lost, the moment its exercise results in a judgment or decision reached by a mistake in applying to the solution of the questions under review, the last previous rulings of the Supreme Court? If this' question is not conclusively answered in the negative from its mere ashing, then we think the foregoing analysis of the separate clauses and context of section six of the amendment of 1884 has demonstrated the impossibility of any other answer. In the light of the obvious meaning of that section, it looks like a contradiction in terms to assume that it warrants the contention which would be implied in an affirmative answer to the above question.- Section six of the amendment will not bear any other interpretation than that it was adopted to give a specific plan for transferring to this court appellate jurisdiction as if “obtained by ordinary appellate process,” of such causes only as “any judge” of the Courts of Appeals causes to be certified here in the interest of harmonizing the rules of decision of all the appellate courts of the State. To
But my learned brother thinks that something can be made out of the language of section 8 supra, in support of the use of a certiorari to quash the judgment of Courts of Appeals when found by this court not to be rendered in accordance with its last previous rulings on the questions of law and equity. That a certiorari, or any other writ mentioned in section 8 of the amendment of 1884 may bé used by this court in aid of its power of superintendence is clear under the language of that section, and that it will bring up the records of inferior tribunals for that purpose and that the power to quash such records depends upon their contents, is well settled in the jurisprudence- of this State. The power to use such extraordinary writs is an attribute of courts of general and final jurisdiction and certain provisions of the Constitution declaratory of these essential powers of such courts are a part of our organic law, as has been shown, and whatever may be the scope of that writ in other cases, it is undoubtedly restricted in its application to the Courts of Appeals to a review of the question of jurisdiction only, for. the primary
It is not necessary to defend the wisdom of the Constitution in relegating, as it does in the two sections under review, the power to correct the exposition of law made by the Courts of Appeals, to the action of an upright and able judge of such court, in the manner defined by the Constitution. It is enough to say, that this plan is the constitutional one. Neither is it necessary to this dissent, to call attention to the vast mass of causes consuming the time and delaying the work of this court, which may be brought here by attorneys who are dissatisfied with the decisions of the Courts of Appeals and deem them at variance with the rulings of this court. Such considerations illustrate the mischief ensuing from the use of writs of certiorari in such cases, but they do not affect the ques
I am wholly unable to follow the argument of the learned majority opinion that such writs as the present should be awarded, because this court recently has overruled what the majority opinion concedes is and was the correct rule on the subject for more than a quarter of a century. If the matter in issue was one relating only to the law governing property rights, there might be some plausibility in the view that interest which had become vested and depended for their security upon such error of doctrine, should not be disturbed by a change of legal doctrine. But that argument has no application to this case. The question here is as to the power of this court to act at all, and if the principle as announced for so long after the adoption of the Constitution and until the recent novelty, is sound (as is conceded in the majority opinion), then this court is guilty of a simple act of usurpation when it undertakes to issue a writ of certiorari like the present, and its judgment in so doing is absolutely void. The Constitution is the basis of all government and all judicial power, and I cannot agree that any condonation should be extended to its violation, nor that its authority should not be restored, because it has once been set aside by a ruling of this court diametrically opposed to its own decisions for more than a generation and to the words, meaning and purpose for which the Constitution was amended in 1884.
For the foregoing reasons, and that my own view may be understood by the enlightened.bar, as well as