State ex rel. Hezel v. Bland
148 Mo. 625
Mo.
1899
Check Treatment
YALLIANT, J.

This is an application for mandamus to compel respondents, who are judges of the St. Louis Court of Appeals, to certify and transfer to this court a cause in which that court has rendered a decision which, it is alleged, one of the judges therein sitting deems contrary to a previous decision of this court. The respondents in their return say that the judge who deems the decision contrary to a previous decision of this court did not sit in the case, and for that reason they refuse to certify it up to this court.

There is a motion on file by respondents to strike out certain evidence but it will not be necessary to pass on the motion, since it will not be necessary to look into the evidence; the petition and return to the alternative writ show admitted and undisputed facts sufficient for adeterminaton of the case; from which sources we gather the following facts:

At the March term, 1897, a suit was pending in the St. Louis Court of Appeals from the circuit court of the city of St. Louis, wherein the Barber Asphalt Company, plaintiff below, was appellant, and Morris Hezel and others, the rela-tors herein, defendants below, were respondents. The cause canie on for hearing in the St. Louis Court of Appeals on *629Marcb 26, 1897, before tbe Honorable Charles O. Bland, tbe Honorable "William H. Biggs and the Honorable Henry "W. Bond, then and now constituting that court; all three of those judges were on the bench at the time and the cause-was then argued by counsel and duly submitted to the court and taken under advisement. After the case was submitted, without consultation on its merits, it was assigned to Judge Bland to prepare an opinion; afterwards and before an opinion was prepared, the three judges in consultation together agreed that because they were informed that a cause was then pending in this court involving the same questions of law, it would be advisable to withhold a decision of the case they had until they should see the decision of this court in the case they were informed was here. The opinion of this court in that case reached the court of appeals June 7, 1898; then pursuant to the understanding Judge Bland turned his attention to the case in question, and prepared an opinion which, after consultation with Judge Bond, Judge Biggs .being absent, was, on June 21, delivered as the opinion of the court directing a judgment reversing the judgment of the circuit court and remanding the cause. "When the opinion was delivered from the bench, -only Judge Bland and Judge Bond were present. The opinion is signed by Judge Bland, and this memorandum at the foot: “Judge Bond concurs, Judge Biggs, absent.”

On June 30, within the time allowed by the rules of the court, relators, defendants in that suit, filed a motion for rehearing; on July 5, during the same term, and before the motion for rehearing was overruled, the three judges present on the bench, Judge Biggs delivered a dissenting opinion, in which he cited the case of Yerdin v. St. Louis, 131 Mo. 26, and therein stated that he regarded that as the last controlling decision on the subject involved, and that the majority opinion filed June 21 was in conflict with that decision, and requested that the cause be certified to the Supreme Court.

*630Tbe action of tbe court on tbat request is expressed in its record of July 5, as follows: “Now at tbis day there is filed a dissenting opinion by Judge Biggs, asking tbat tbis cause be certified to tbe Supreme Court of tbis State, but as Judge Biggs was not sitting, and took no part wben tbe opinion and judgment were rendered herein by tbis court on tbe 21st day of June, 1898, reversing and remanding tbis cause, a majority of tbe judges of tbis court are of opinion tbat no ground for certifying tbis cause exists within tbe meaning of section 6 of tbe amendment to tbe Constitution of Missouri, limiting and defining tbe jurisdiction of tbis court.” After which tbe motion for rehearing was overruled.

Immediately on tbe refusal of tbe court to certify tbe case, as Judge Biggs bad requested, tbe relators by their counsel then present asked leave to file a motion to tbat effect, but tbe court refused their request, and then adjourned for tbe term. It is stated in tbe reply and, without looking into tbe evidence, for tbe purpose of tbis suit we will take it for true, tbat there was never any consultation on tbe merits of the case between Judge Biggs and tbe other two judges; tbat after the majority opinion was filed, and while tbe motion for rehearing was pending, Judge Biggs sent a written memorandum to Judge Bland in which be stated tbat be considered tbe majority opinion in conflict with tbe decision in Verdin v. St. Louis, and be was in favor of sustaining tbe motion for rehearing, but Judge Bland by similar means informed Judge Biggs tbat Judge Bond and himself bad previously talked tbe matter over and bad agreed to overrule the motion and tbat would be tbe order. Then Judge Biggs, without further interchange of views on the subject with the other two judges, or either of them, prepared bis dissenting opinion, which was delivered on July 5.

Tbe only question presented for our consideration by ■this record is, did Judge Biggs sit in tbat case ?

*631Judge Biggs was oil tlie bench when the case was argued, and submitted and taken under advisement; tbe case tben rested as mucb on bis conscience as tbat of tbe other judges; its assignment to another judge in no sense withdrew tbe responsibility from him; be counseled with tbe other members of tbe court on tbe wisdom of waiting for further light on tbe subject from this court; within a few days after tbe majority opinion was delivered, and during tbe same term, and while the motion for rehearing was pending, be communicated to the writer of tbe opinion bis views, and cited a decision of this court which be thought was being contravened, and expressed bis opinion tbat tbe motion for rehearing ought to be sustained. It appears from tbe return tbat Judges Bland and Bond, before tbe return of Judge Biggs, consulted on tbe motion for rehearing, and after due deliberation came to tbe conclusion tbat it ought to be overruled. But it by no means follows tbat because they bad agreed on tbe opinion in tbe first instance they would agree to overrule tbe motion for rehearing. A motion for a rehearing is a very serious stage of tbe case; it often saves tbe court from error and tbe party from wrong. Tbe case is pending for all there is in it, in tbe appellate court, until tbat motion is overruled. [State ex rel. v. Philips, Judge, 96 Mo. 570.] Now suppose Judges Bland and Bond bad become divided in opinion, one favoring granting and tbe other denying tbe motion, tben Judge Biggs’ vote would have accomplished an entire change in tbe case; yet bis vote was as valid when it stood alone for tbe rehearing, as it would have been if it bad been cast with tbe majority.

While tbe motion was pending, if Judge Biggs thought tbe decision was wrong it was bis duty as a judge to exert bis influence to correct'the error. It is not necessary tbat a judge of an appellate court should be in session with tbe other judges at every stage of the case in order to enable him to perforin any duty which bis mind and conscience dictate *632in reference to tbe case; and it is not necessary that he should take part in every stage before he can be considered as sitting in it.

Under the facts of this case, Judge Biggs is to be adjudged as having sat in it; was entitled to file his dissenting opinion, and, upon his statement that he deemed the majority opinion contrary to the decision he mentioned, that court ought to have certified and transferred the cause to this court in accordance with the requirement of section 6 of the amendment of 1884 of the Constitution.

The peremptory unit of mandamus is awarded.

All concur, except Judge Buegess, absent.