State ex rel. Gilman v. Robertson

175 S.W. 610, 264 Mo. 661, 1915 Mo. LEXIS 103

• Court: Supreme Court of Missouri
• Decided: April 2, 1915
• Status: Published

Opinions

WOODSON, C. J.

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: respondent Gooch filed in that court a motion to affirm the judgment of the circuit court. Notice of said motion was duly served upon the appellants there, the relators here. On the same day, the appellants there, the relators here, caused to be filed in the Court of Appeals a certified copy of the judgment of the circuit court, and of the order granting the appeal. On September 29th of the same year the relators here made application for a continuance and thereafter, on the 12th day of October, 1914, the Court of Appeals sustained the respondent’s (Gooch’s) motion to affirm the judgment of the circuit court.

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:

Review of Error of Court of Appeals.

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 this court, covering a period of more than a quarter of a century.

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 transcript of the record of a judgment of the circuit court in the appellate court when an appeal is taken, that of appellant or that of the clerk of the circuit court?

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.

Broivn, J., concurs in result; Graves, Walker, Baris and Blair, JJ., concur in result in a separate opinion by Grcuves, J.; Bond, J., dissents in an opinion filed.