State ex rel. Scott v. Smith

104 Mo. 419

• Court: Supreme Court of Missouri
• Decided: April 15, 1891
• Status: Published

Opinions

Barclay, J.

— This is an application for a rule in prohibition against the judges of the Kansas City court of appeals to stay their exercise of jurisdiction over a cause in that court. The defendants resist the application, and by demurrer claim that no sufficient grounds appear for granting it.

Passing (without deciding) the question whether the application is not premature, and going directly to the merits, we find that the court of appeals has undoubted appellate jurisdiction of the subject-matter of the action pending there, by which is meant that that court, upon appeal or writ of error, has jurisdiction of causes of the general class to which that action belongs (Posthlewaite v. Ghiselin (1889), 97 Mo. 420), namely, of proceedings for divorce.

This being so, the question whether the writ of error (necessary to bring its jurisdiction into play in that particular case) was issued from that court in the time, manner or form allowed by law was one peculiarly for it to determine. In the circumstance? disclosed in ■this instance, we do not regard its ruling thereon as presenting any proper matter for our review in the mode now attempted.

II. But, further than that, ■ the statute on which the petitioner now relies declares that: “No final judgment or order rendered in cases arising under this chapter shall be reversed, annulled or modified, in the supreme or any other court, by appeal or writ of error, unless such appeal shall have been granted during the term of court at which the judgment or order appealed from was rendered, or unless such writ of error shall have been issued within sixty days after the order was made or judgment was rendered.” R. S. 1889, sec. 4510.

The writ of error from the court of appeals was issued within sixty days after the order in the circuit court, overruling the motion for new trial, though more than that length of time after the date of the entry of the judgment or decree in that cause.

It has been held, with respect to appeals in other actions, under the statute requiring such appeals to be taken “during the term at which the judgment or decision appealed from was rendered” (R. S. 1889, sec. 2248), that the term at which the motion for new trial is ■overruled should be regarded as the term at which the judgment becomes a finality for the purposes of review, though the formal entry of judgment may have been made at a previous term. Lane v. Kingsberry (1848), 11 Mo. 402 ; Thomas v. Thomas (1876), 64 Mo. 353; Owens v. Van Studdiford (1885), 86 Mo. 149 ; State ex rel. v. Philips (1888), 96 Mo. 570.

We think that, by analogy to these rulings, the writ of error here in question should be regarded as having been issued within the period permitted by the statute.

It follows that the demurrer should be sustained, and the application for a rule denied. It is so ordered.

Sherwood, C. J., concurs in denying the application. Black, J., concurs, as stated by him, in a separate opinion. Brace, J., concurs on the grounds stated in the second paragraph.