297 S.W. 59 | Mo. | 1927
Lead Opinion
This is an original proceeding by certiorari to review the record of the Kansas City Court of Appeals in making permanent a writ of prohibition directed against the relators herein. Relators seek to quash the record of the Court of Appeals, alleging a conflict between the opinion of that court in the prohibition case mentioned and controlling decisions of this court.
In the original suit involved, the White Satin Sugar Company sued on an account and attached certain property. Judgment by default was rendered and the attachment sustained. On the motion of one of the defaulting defendants the default judgment was set aside and a new trial granted. From this ruling the judgment plaintiff (White Satin Sugar Company) appealed, and also applied to the Court of Appeals for a writ of prohibition to prevent a hearing by the Circuit Court of Jackson County on an interplea involving the ownership of the property attached, pending said appeal. The Court of Appeals issued a temporary writ of prohibition, and later, after a hearing on the merits, made the writ permanent.
As a preliminary matter, we sustain the motion of relators to strike from the files the return of the respondent White Satin Sugar Company. The writ of certiorari issued by this court being employed only for a review of the record of the Court of Appeals, the return of the White Satin Sugar Company serves no purpose and has no place in this proceeding. [Sec. S, Art. 6, Mo. Const., Amendment of 1884; State ex rel. v. County Court, 237 Mo. l.c. 469; State ex rel. v. Bland, 168 Mo. l.c. 7.]
The opinion of the Court of Appeals, being short, will now be quoted in full. It reads as follows:
"The original suit was based upon an unpaid account for goods purchased and in order thereof an attachment was issued wherein certain candy-making machinery was attached. There was a judgment *861 by default for the amount of the claim and the attachment was upheld. Thereafter, a motion for a new trial and to set aside the default judgment was sustained; from which ruling of the court relator appealed to this court, where the same is now pending. Later, an amended petition in interpleader was filed by one of the parties defendant in the main suit, and the trial court proposed to proceed to a hearing of the case on its merits on the interplea.
"Upon this state of facts, relator applied to this court for relief and a preliminary writ of prohibition was issued. Parties have filed briefs and the cause is now before us for a determination of the question of making the writ permanent. The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court in sustaining defendants' motion for a new trial and in setting aside the default judgment operates as a stay of all further proceedings and orders by the trial court in the case.
"The ownership of the property attached was the point directly involved in the original suit, and the questions form the basis of the interplea. It is relator's position that where an appeal has been granted, as here, the court below can make no order in the case except to vacate the order of appeal. As shown by the record which is properly certified by the clerk of the circuit court, no order vacating the order of appeal was made by the court. The record discloses that the appeal from the action of the court in sustaining the motion for a new trial was made on April 22, 1926, and that on May 8, 1926, the amended interplea was filed and the court proposed to proceed with a hearing thereon.
"We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court granting a new trial, and we need not, therefore, discuss this point. It was held in Haven v. Ry. Co.,
"The Supreme Court in Burgess v. O'Donoghue,
"For the reasons herein stated, the preliminary writ of prohibition issued herein is hereby made permanent.
"Bland, J., concurs; Trimble, P.J., absent.
"HENRY L. ARNOLD, J."
We note that the opinion says: "The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court in sustaining defendants' motion for a new trial and in setting aside the default judgment operates as a stay of all further proceedings and orders by the trial court in the case." (Italics ours.) We note also that the opinion further says: "We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court granting a new trial, and we need not, therefore, discuss this point." (Italics ours.) However, a careful consideration of the opinion, as a whole, discloses that the conclusion reached by the learned judge, who wrote the opinion for the Court of Appeals, rests, necessarily, upon the assumption that the judgment appealed from was a final judgment and that the appeal in question was properly allowed. Moreover, it is expressly held in the opinion that the judgment appealed from was a final judgment, in the following language:
"The judgment herein appealed from, to-wit, the order of the court sustaining defendants' motion for a new trial, is a finaljudgment, by default (Miller v. Crawford,
With this holding before us, we go now to the question of alleged conflict. The question of a plaintiff's right of appeal
from an order setting aside a judgment by default was squarely presented to the St. Louis Court of Appeals in the case of Bussiere v. Sayman,
"Another strenuous contention of respondent, to-wit, `that from an order of the court nisi sustaining the motion of defendant to set aside a judgment by default no appeal is given by our statute,' next deserves our attention. If this contention of respondent is well taken, we must dismiss this appeal. The St. Louis Court of Appeals dismissed it as not appealable; not because in their opinion no appeal lay, but because this court in the case of Crossland v. Admire, supra, had held that no appeal lies in such case. In short, they give it as their opinion that we are in error in our holding here on this itching question, but they followed us as in duty bound. [Sec. 6, Amendment of 1884 to Constitution.]
"There is no sort of doubt that the case of Miller v. Crawford,
"The first case in this court after the statute was amended in 1891 which dealt with this matter of whether an appeal lies in this sort of case, was the case of Crossland v. Admire,
"The choice being now, as our examination and discussion of all of the cases found by us or called to our attention manifestly show, between our holding in one case and that of the Kansas City Court of Appeals, likewise in one case, we ought in the interest of justice and fairness to examine and analyze the sole reason upon which, if it exists, the right of appeal here must be bottomed. Turning to Section 2038, we note that the only language upon which a doubt can hang is that found in the clause: `or from any special order after final judgment in the cause.' From this language it is urged and argued and held the right of appeal arises here. [Miller v. Crawford, supra; Bussiere v. Sayman, supra.] But when we carefully look to the words used, is this clearly or necessarily so? The word `special,' is in its meaning and definition as found in the dictionaries, so varied, varying and `general,' as that we frankly concede there is no argument to be derived from its use in the troubling clause. Is there here left any final judgment in the cause, when the appeal is prayed? Clearly not, because the motion being acted on favorably by the court has utterly wiped the final judgment off the record and the earth. It is not and cannot be an appeal after final judgment, because such a term could be applied only where a final judgment still existed, not a case where it utterly ceased to exist. I can readily see and appreciate the legal correctness of an appeal being permitted from a special, i.e., particular, ancillary order, made after a rendition of a final judgment which judgment still exists. . . .
"Having thus carefully examined the ruled cases, and the statutes relied on as creating the right of appeal, and the necessity, or lack thereof, for an appeal at such a stage, we are unable to see any sufficient reason why we should overrule the case of Crossland v. Admire, supra. That case was ruled by a most able and painstaking jurist, but recently as the age of the law is, and at a time when the statute on this point was just as it now stands; it was ruled without dissent, one judge absent, by the Division hearing it. The conditions have not changed in favor of a different rule. It may well be that *865 since a different rule would clog the courts and hinder and delay the business thereof, that conditions have changed in favor of the rule announced in the Crossland case. The case of Miller v.Crawford, 140 Mo. App. 711, should be followed no longer." (Italics ours.)
Shortly after the case of Bussiere v. Sayman was certified from the St. Louis Court of Appeals, the case of Holder v. Chidister,
"We come in conflict with the Kansas City Court of Appeals in the case of Icing Co. v. Kemper,
This court, in disposing of the case, contented itself with a brief reference to its holding in the Bussiere case, by way of unqualified approval, treating the question as settled. [Holder v. Chidister, 193 S.W. 568.]
In dealing with the statute which authorizes appeals from the circuit court to our appellate courts (Sec. 1469, R.S. 1919), our rulings in more recent cases are in full accord with the construction of that statute as established in the Bussiere case. [McFarland v. O'Reilly, 308 Mo. l.c. 328; State ex rel. v. Trimble, 309 Mo. l.c. 424; Segall v. Garlichs, 313 Mo. l.c. 410.]
It follows that the opinion of our learned brothers of the Kansas City Court of Appeals is in conflict with decisions of this court, now controlling, and that such opinion and the record upon which it is based should be quashed. It is so ordered.Higbee and Davis, CC., concur.
Addendum
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.