187 Mo. 536 | Mo. | 1905
Original mandamus, instituted here on December 29, 1904; alternative writ, with rule to show cause on January 3, 1905, issued on same day, and served on respondent December 31, 1904.
On respondent’s making return, relators filed their motion for judgment on the pleadings, and thereby an issue at law is joined for determination.
Such issue demands a summary of the material allegations pro and con, in the making of which, as appears in due course, our labors are lightened because of certain issues settled in a former case in this court between the same relators on one side and the same respondent on the other.
It appears from the recitations of the alternative writ,.borrowed from the showing made in relators’ petition, that Priddy et al., the present relators, commenced their certain nine actions in the circuit court of Jackson county, some being assigned to division 1, and some to other divisions of that court, and all returnable to its January term, 1903. These suit were against divers and sundry separate defendants, including one Mackenzie, and each petition contained two counts, one in plain ejectment, and another having for its purpose the determination of the interests and the quieting of the title of relators in the specified land, under section 650, Revised Statutes 1899.
Such proceedings were had in all these cases as resulted in their gathering and remaining in the division of said court over which respondent presided, and this over the protest of relators and exceptions saved.
Relators then filed their duly-verified application for a change of venue in each of said cases, setting forth, inter alia, that respondent and the other judges of said court (naming them) were (1) prejudiced against
On June 30, 1903, respondent heard said applications for a change of venue, with the evidence offered, and denied all and every of them, to which ruling relators objected and saved exceptions.
Defendants in said several causes had theretofore answered in common form and thereby pleaded certain legal defenses, together with such particular estoppels in pais and other equitable matters as entitled them to affirmative relief, which they duly prayed and which made the causes cognizable in a court of equity before a chancellor. In this condition of things respondent advised relators in open court that he purposed trying all said causes at one and the same time, as if they had been consolidated, by applying all the evidence offered on each side to all the cases and by applying it to each in so far as it was peculiar to each case. Whereat relators objected to such ruling and saved an exception.
Relators then made applications for a continuance, alleging lack of preparedness. This grace was denied and they again saved exceptions.
Whereupon relators were forced to trial on the merits in all said cases (treated as consolidated) and they presently offered evidence tending to show that respondent, prior to his election to the bench, was a member of a distinguished law firm in Kansas City, Warner, Dean, Gibson & McLeod, which firm was then the attorneys of defendant Mackenzie, and as such attorneys did give an opinion through one of its members, McLeod, to the effect that the title to the real estate in
The trial progressed to its close, the court finding all the issues for defendants, overruling motions for new trial and in arrest, to which relators saved exceptions, and granting record leave to relators to file bills of exception on the third Monday of the ensuing October term, 1903.
We have purposely, thus far, compressed the exhaustive recitations of the alternative writ (spread over’nineteen pages of print) into small compass and shall continue so to do.
The remaining recitals of the writ are in effect that relators, within the time limited by leave, presented nine bills of exceptions,-common in form except as to names, each alleged to be a true bill, barring all evidence on the merits — the object being to present to this court for review, (1) the ruling of respondent on the applications for a change of venue, (2) his action in compelling the joint trial of the nine cases, (3) his ruling on the applications for a'continuance, and (4) his ruling on said verified protest and his refusal to discontinue the trial on the disclosures in evidence as aforesaid — and which said bills contained all said written applications and all evidence pertinent to each, together with the rulings of respondent thereon and re
Respondent refused to settle and allow the bills unless the evidence on the merits was incorporated therein and so notified relators. Thereat relators requested him to. examine them and indorse thereon his objections and return them to relators to the end that they might, if possible, procure them to be signed by by-standers. Prom time to time, by orders made of record, the time for filing the bills was extended in order to enable respondent to state his objections, the last extension being until December 5, 1903 — none of these extensions had been requested by relators and up to that date neither respondent nor defendants’ attorneys had disclosed to relators the scope or character of any objections (excepting the omission of the evidence on the merits) they or either of them had to the bills, though often requested so to do.
On the 4th of December, 1903, relators ’ counsel appeared in open court and filed a motion for a further extension of time, alleging for grounds that the time was about to expire and they had not been informed of the character of objections entertained, if any, and their right to bills would be lost through no fault of theirs unless an extension was granted.
On December 5, 1903, this motion was overruled, and a series of rather anomalous incidents occurred, the real tenor of which is somewhat nebulous and elusive as gathered from the alternative writ, but stated cautiously, the pith of it all results apparently in this: Eelators’ counsel appeared betimes in court (9:30 a. m.), saw their bills, quoting the language of the writ, ‘ ‘ lying on your bench in said court within arm’s length of you, with the written objections you had prepared to said bills attached thereto.” Respondent declined on request (1) to allow relators to examine the bills or objections before said motion for an extension of time
We have been thus particular in stating the pertinent events of December 5, 1903, because whatever the merits of the controversy may have been, up to and inclusive of that date, between respondent as judge of the Jackson County Circuit Court, and relators, a
The mandate of the alternative writ commandedi respondent to permit relators to embody in eight of the bills (excluding the Mackenzie case), certain indicated matter covered by said eleven objections and to allow, sign and cause to be filed the eight bills, without the testimony on the merits, or show cause on January 3, 1905, why he had not so done.
A part of respondent’s return pleads matter heretofore before this court and which will be briefly referred to in order that the story of this case may be intelligible. It appears that relators singled out the Mackenzie case to proceed with, and on the 24th of March, 1904, sued out of this court an alternative writ of mandamus directed to respondent and having for its purpose the settling of the bill of exceptions in the Mackenzie case alone. Return was filed in April of that year and issue joined by a motion for judgment on the pleadings and the cause was heard in this court at this term and a peremptory writ awarded on November 25, 1904. In that cause the controlling question was whether, in an equity case, a trial judge could be coerced by the moving writ of mandamus to settle and sign a bill of exceptions which did not include the evidence on the merits. This court there held that where the matter sought to be presented on review went solely to the jurisdiction of the court below to try the case at all, the bill of exceptions should be settled and allowed, excluding the evidence on the merits. [State ex rel. Priddy et al. v. Gibson, 184 Mo. 490.] By that case this court construed its own rule number 7, and held that
This view eliminates thirty-seven pages of printed matter in respondent’s return, the remainder of which set forth that (1) respondent’s official term expired on January 1, 1905, and that he is no longer judge of the circuit court of Jackson county, and (2) concluded as follows:
“For a further return to the alternative writ the respondent states, that prior to the institution of this action and on or about, to-wit, the 20th day of December, 1904, the relators, through their counsel, requested the respondent as judge of division one of the circuit court of Jackson county, Missouri, to sign the bills of exceptions mentioned in the alternative writ as follows: G. W. Priddy et al. v. J. W. Merrill, No. 9865; G. W. Priddy et al. v. H. J. Rosencrans, No. 9864; G. W.Priddy et al. v. Minerva Hays, No. 9863; G. W. Priddy et al. v. W. M. McDearmon, No. 9857; G. W. Priddy et al. v. W. W. Kendall, No. 9858; G. W. Priddy et al.v. T. B. Tomb, No. 9867; G. W. Priddy et al. v. D. T. Beals, No. 9861; G. W. Priddy et al. v. J. A. Bayles, No. 9872.
“That thereupon and pursuant to the request of relators through their counsel this respondent did, as such judge, duly sign and seal each and every one of said bills of exceptions and caused the same to be filed with the clerk of the circuit court of Jackson county, Missouri, and made a part of the record in said causes respectively. Wherefore respondent prays that he may be dismissed with his costs.”
Certain other undisputed matters will he referred to further on in this opinion and it may be said the lines of controversy are drawn, and that controversy pitched, about three principal asking propositions, viz:
(1) Respondent having, before the issuance of the alternative writ and at the request of relators, settled, signed and caused to be filed all the bills of exceptions, but at a time subsequent to the record leave, will a peremptory writ issue to make him do over again what he has already done?
(2) Respondent’s official term having expired between the time of the service of the alternative writ and his return thereto, should he be coerced by a peremptory writ into doing a judicial act when functus officio?
(3) Are relators guilty.of such laches as, in the exercise of a sound legal discretion on our part, should defeat a peremptory writ?
Of these seriatim.
I. It is clear, we think, that respondent lost the power to incorporate the bills in the record, of his own motion, after the day fixed by leave, and that an extension of such power could only be bottomed on an extension of time made while the right of extension existed. It is furthermore clear that the mere request of relators, made over a year after the leave expired, could not have the effect to blow into life this dead coal of power, nor could it add aught of legal efficacy to respondent’s compliance with that request, hence these bills must stand in the eye of the law precisely the same as if allowed and signed without sueh request. Even an order extending the time, made after leave expired,
Notwithstanding this is so, it does not follow that because respondent had lost the power to settle the bills of his. own motion, or by consent, relators were remediless on timely application here. No such reproach can be imputed to the law as that an injured suitor loses his right to an effectual appeal or writ of error,' by the inadvertent or capricious refusal of a trial court to do its duty and create a receptacle for errors and exceptions at a time when the inherent power existed; because this court, either of its original or its appellate jurisdiction, by virtue of its constitutional superintending control, may ex debito justiciae, compel the doing of an act which a lower court has lost the power to do spontaneously. In State ex rel. v. Lewis, 71 Mo. 170, the time had expired for the court of appeals (under the former practice of appeal therefrom) to approve a bond in appeal and grant a supersedeas, it having refused a bond at the proper term under the mistaken notion that it had lost jurisdiction by a prior order granting an appeal to this court, and Sherwood, J., speaking for the court, said: “We are of the opinion, also, that it is a matter of no importance that the term has now passed during which the judgment of the court of appeals was- rendered. An incident of this sort by no means divests the power of this court to afford that measure of relief which is applied for in the present instance." State ex rel. v. Philips, 96 Mo. 570, was a case where the court of appeals had lost the power to certify a case here because of a lapse of the term at which it was decided, and Brace, J., spealdng for.the court, said: “If it did not become its duty to certify the cause during the term, it could not become so afterward and after the term the court could not of its own motion certify and transfer the cause; but if it did during the term become its duty to do so,
These cases have been cited and approved in later cases (State ex rel. v. Smith, 107 Mo. 534; State ex rel. v. Public Schools, 134 Mo. 311; State ex rel. v. Smith, 172 Mo. 627-630), and.must be regarded as settling the principles of law applicable to the question in hand.
Treating, then, the request of relators to respondent to settle and sign the bills as of no vitality, treating the signing and filing of the bills by respondent on or about December 20, 1904, as a nullity, and regarding the bills the same as blank paper, we hold that relators are entitled to a peremptory writ unless their right to
In this view we are not unmindful of such cases as State ex rel. v. Schofield, 41 Mo. 38; State ex rel. v. Draper, 50 Mo. 24, where the acts already, performed were effectual in dispensing with the purpose of the writ of mandamus, nor of such cases as Harris v. Georgia, 2 Ga. 290; Cox v. Hillyer, 65 Ga. 57; Harbaugh v. Judge of Wayne Circuit, 32 Mich. 259; State ex rel. v. Newman, 25 Neb. 35; Hice v. Orr, 16 Wash. 163; Weeden v. Arnold, 5 Okla. 578; State ex rel. v. Small, 47 Wis. 436; Thornton v. Hoge, 84 Cal. 231, and other cases of that class where, by the return to the alternative writ, it was shown that the act sought to be performed under compulsion had already been performed, all of which cases are distinguished from the one at bar by the characteristic fact that the absolving act was done at a time and in the manner respondent bad the legal right to do and perform.
Inasmuch, however, as the tendency of the judicial mind is away from planting thorns in the path of review (Patterson v. Yancey, 97 Mo. App. 690), in order that justice may be dealt out with certainty and in full measure, and inasmuch as the original eight causes involved in this proceeding are now pending in this court on writs of error, it is thought a debt due to the administration of the law requires us not to conclude counsel or this court on this point by this opinion, should relators desire to present anew in the principal cases the question whether the bills actually allowed and signed by respondent, but out of time, are sufficiently authenticated receptacles of error and exceptions under the peculiar facts here existing.
II. In our opinion the peremptory writ will have to be denied on the ground that respondent’s official term has expired. The case is an extreme one and guard must be kept against the danger suggested by the
At first, bills of exception were settled and signed presently during the trial term, and such course was necessary, because, in the absence of short hand notes, the verity of the hills depended on the fallible and fading memory of court and counsel. By the same token the law and practice required the trial judge in his own' proper person to settle and sign bills of exceptions. But in the evolution of the practice and of the written law a certain flexibility, providing for hardships, for new needs and for the suitable use of new means for obtaining accuracy in preserving the incidents of a lawsuit, to-wit, the official stenographer’s notes, was created. Oases illustrating these phases of development and construing and applying our remedial statutes have been industriously collected by counsel in their briefs, but need not be referred to here. Finally, the legislative torch burned up all the learning of those cases requiring the trial judge and no other to settle and sign bills of exception,, and there was enacted in 1889 the following statute, now section 731, Revised Statutes 1899: “In any case where the judge who heard the cause shall go out of office before signing the hill of exceptions, such hill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to he correct,
This statute is highly remedial and accordingly has been most liberally construed to further its manifest life and purpose (State ex rel. Cosgrove v. Perkins, 139 Mo. 106; Richardson v. Agr. & Mec. Ass’n, 156 Mo. 407; Fehlhauer v. St. Louis, 178 Mo. 653), and we think should control this case. By so holding we avoid issuing a peremptory writ requiring an ex-judge to meddle with the records, and we are well within the weight of authority elsewhere. [DeHaas v. Newaygo, 46 Mich. 12; Phelps v. Conant, 30 Vt. 277; Leach v. Aitken, 91 Cal. 484; State ex rel. v. Allyn, 7 Wash. 285; and see authorities collated by Goode, J. in Patterson v. Yancey, 97 Mo. App. 688, et seq.] There is a line of cases holding otherwise, of which State ex rel. v. Barnes, 16 Neb. 37, is a sample, but it does not appear that such a statute as section 731, supra, existed there, or in the states whose appellate courts are cited by the Nebraska court.
In this connection a subsidiary question is discussed by counsel whereby it is affirmed on one side and denied on the other that the writ in this case may go, as of course, against the successor of respondent, Judge Park. We deem the palpable fact that Judge Park is not a party to this proceeding and has had no day in court, a complete answer to such contention. There are before us no complaints against Judge Park and no demands are made on him by the pleadings in this cause and we shall not pass upon any question pertaining to him, until, if ever, he has been served with a writ and rule to show cause and makes his return. The question is a mere moot or abstract one on this record and will not be decided either by way of parenthesis, or by way of anticipation.
III. Are the relators guilty of such laches as defeat the writ?
In the growth of the law of mandamus, it must be
In State ex rel. v. Fraker, 166 Mo. 140, the doctrine of the text of High on Extr. Leg. Rem. (3 Ed.), sec. 430, is adopted, treating mandamus as an ordinary writ of right, which issues as of course on proper showing made. The correct rule, deduced from the modem practice, seems to be that mandamus, while no longer á mere prerogative writ, is yet somewhat of a discretionary writ and should be issued, not in the exercise of an arbitrary or capricious discretion, but in the exercise of a sound legal discretion in accordance with the' established mies of law. [19 Am. & Eng. Ency. Law (2 Ed.), 751.] And among the things appealing to the discretion of the court are laches, andherein of mere delay not necessarily sufficient to involve the bar of statutes of limitation.
We are cited to many cases applying the doctrine of laches to mandamus proceedings, but painstaking discrimination must he used in applying particular case law, since what is a lache or neglect in one case may not be in another. For example, in State ex rel. v. Finley, 74 Mo. App. 213, Hughlett was elected city mar
In People ex rel. v. Seneca Common Pleas, 2 Wend. 264, one year was held too long to wait to set aside certain proceedings. In Vason v. Gardner, 70 Ga. 517, four months ’ delay in applying for a writ on a judge, nisi, to settle a bill of exceptions was held fatal to the remedy. In Estate of Depeaux v. Peck, 118 Cal. 522, six months were held too long to wait for an application to the Supreme Court to settle a bill of exceptions. The case is instructive and it will not be time or space misspent to quote from it. “Such application,” say that
The New York, Ohio and Connecticut courts take a somewhat broader view and lay down certain general principles controlling the question of laches in mandamus. In People ex rel. v. Common Council, 78 N. Y. 56, Chief Justice Church said: “When the relator has for an unreasonable time slept upon his rights, the court may, in the exercise of a sound discretion, refuse the writ. In determining what will constitute .such unreasonable delay, regard should be had to circumstances which justify the delay, to the nature of the case, and the relief demanded, and to the question whether the rights of the defendant or of other persons have been prejudiced by such delay.” In that case a delay of twenty months was held no laches, but the grounds of the mandamus had reference to certain proceedings before a city council and relator seems not to have been aware of the action complained of at the time.
Chinn v. Trustees, 32 Ohio St. 236, was mandamus to compel the delivery of a township bounty bond for $100 to a volunteer veteran of the Civil War, and a delay of six years, nothing more appearing, was held not fatal.
In Ansonia v. Studley, 67 Conn. 170, the lower court considered one year inequitable and as laches in an application for a mandamus to compel a trial judge to prepare a finding in a case with a view to appeal. The Supreme Court refused to interfere with
In Walker v. Stoddard, 31 Mo. 123, the neglect which defeated the writ was a failure to prepare the bill of exceptions in proper form, and no question of time was involved. In State ex rel. v. Redd, 68 Mo. l. c. 109, relief by mandamus was denied to relator who got his bill of exceptions signed but neglected to file it in term, though signed by the neglect of the trial judge out of time. In State ex rel. v. Smith, 172 Mo. 618, it was held that an application for mandamus to compel the court of appeals to reinstate a cause, was timely when made to the court at its next term after the mandate from the court of appeals went down, when the rights of no third parties had intervened.
From the cases we draw the general doctrine that each case must stand on its own pertinent facts and, further, that where mandamus is applied for to settle a bill of exceptions with a view to an appeal, the application should be promptly made unless satisfactory excuse be given for the delay. This view accords with the general policy of our law to hasten appellate determination of causes; e. g., an appeal must be docketed here at the next term to .which it is returnable. [R. S. 1899, sec. 812.] Writs of error can not be sued out after one year from date of judgment. [R. S. 1899, sec. 837.]
“Right and justice,” says our Bill of Rights, sec. 10, “should be administered without sale, denial or delay, ’ ’ and, if reasons afield be permissible, see Hamlet’s monologue (Hamlet, act 3, scene 1), where the “law’s delay” is enumerated among the grounds for felo de se.
In this case application is made for mandamus to compel the settlement and signing of bills of exception over a year after the trial judge had refused to settle and sign them and over a year after relators knew of his refusal and we are of opinion the delay is ground
We deem it proper to say that while the record contains some incidents denoting inadvertence upon the part of respondent, and while he should have allowed and signed the bills, yet we indulge him with the presumption that he acted under the solemnity of his oath to honestly and faithfully perform the duties of his high office, and, as has been said by this court in another case, so we say here, that this court owes too much respect to him and all the other circuit judges of the State to attribute to him or any of them a disposition to play fast and loose with justice, in the absence of cogent evidence to the contrary.
The peremptory writ is denied on account of the expiration of the official term of respondent and on account of laches.