State ex rel. O'Malley v. Nixon

138 S.W. 342, 233 Mo. 345, 1911 Mo. LEXIS 61

• Court: Supreme Court of Missouri
• Decided: June 7, 1911
• Status: Published

Opinion

BBOWN, J.

This is an original action by certiorari in this court to quash the judgment and other proceedings of the respondents as judges of the Springfield Court of Appeals, in a certain suit which originated in the circuit court of St. Louis City, entitled, “State of Missouri at the relation and to the use of Margaret O’Malley, plaintiff, against John U. Musiek, Edward Christ Ette and David M. Musiek, defendants.”

In this last named suit the plaintiff recovered judgment against the defendants in the circuit court of St. Louis City on May 9,1907, for the sum of $5000', from which the defendants under the laws then in force prosecuted an appeal to this court.

Before that appeal was heard by this court the General Assembly increased the jurisdiction of the courts of appeals to $7500; and this court certified said appeal to the St. Louis Court of Appeals, to be heard and determined by that tribunal, pursuant to section 1, Laws 1909, p. 397.

On December 30, 1909, while said appeal was thus duly pending in the St. Louis Court of Appeals, the judges of the several courts of appeals in this State met, and under the provisions of section 3939, Revised Statutes 1909, made an order transferring said appeal to the Springfield Court of Appeals.

Thereafter, the parties to said case of State ex rel. O'Malley v. Musick appeared in said Springfield Court of Appeals and after the cause had been revived against the executor of defendant Ette (who had died), the appeal was duly argued and submitted. On June 6, 1910, said Springfield Court of Appeals filed its opinion and entered judgment in said cause, reversing the judgment of the circuit court of St. Louis.

The relator herein contends that the Springfield Court of Appeals possessed no power or jurisdiction to hear and determine the aforesaid appeal, because of the unconstitutionality of section 3939, Revised Statutes 1909, purporting to authorize the transfer of appeals and writs of error from one court of appeals to another.

The precise question involved in this cause was decided by this court In Banc in the recent case of State ex rel. St. Louis Dressed Beef and Provision Company v. Nixon et al., 232 Mo. 496, wherein we held that the Springfield Court of Appeals possessed no jurisdiction of the subject-matter of an appeal granted by a trial court sitting outside the Springfield appellate district ; and wherein we also further held that the parties to such an appeal could not confer jurisdiction upon such last named appellate court by entering their appearance therein.

It follows that the proceedings of respondents in said suit of State ex rel. O’Malley v. Musick, are illegal and void; and for that reason, the judgment and . all other proceedings of said Springfield Court of Appeals in said cause are quashed; but the acts of respondents having been performed in good faith while acting in a judicial capacity, the costs of this action are taxed against relator.

All concur.