State Ex Rel. Allen v. Trimble

*754 WALKER, C. J. This is an original proceeding by certiorari to quash the record of the Kansas City Court of Appeals in the ease of W. J. C. Allen v. Lloyd Best et al., which was a suit to determine the ownership of certain shares of stock in a corporation named therein. Upon a trial in the circuit court a judgment was rendered in favor of the defendants. An appeal was thereupon perfected to the Court of Appeals. When the case came on for hearing Judge Trimble of the Court of Appeals was ill and Judge Arnold disqualified himself as having formerly been of counsel for the plaintiff. The parties litigant thereupon entered into a stipulation by which they agreed to the selection of Judge Henry L. McCune, a member of the Kansas City Bar, to sit as a special judge with Judge BlaNd in the hearing and determination of the case. Judge McCune consented to perform the duties of a special judge as stipulated by the parties. The case was heard before Judge Bland and Judge McCune, sitting as-judges, and was assigned to the latter to prepare an opinion therein; the opinion submitted and adopted affirmed the judgment of the circuit court. After the overruling of his motion for a rehearing the plaintiff — relator—sued out this writ, alleging that the court, as attempted to be organized by the selection of Judge McCune as a special judge, was without jurisdiction to hear and determine the case submitted and in ruling to the contrary it contravened the decision of this court in Ladd v. Forsee, 163 Mo. 506. The many irregularities in the presentation of the application for this writ are sufficient, under ordinary circumstances, to authorize its denial. Despite these irregularities the question of the Court of Appeals’ jurisdiction as attempted to be exercised in the disposition of the original case is one demanding determination. We will first consider the purely technical objections which may be urged to the issuance of the writ. I. It may be admitted that the relator did not, according to the letter of our Rule 34, cite Ladd v. Forsee, 163 Mo. 506, as having been contravened by the ruling of the Court of Appeals as attempted to be created by the action of one of its judges. Relator did, however, specifically allege the illegality of the court’s actions as -yllTS constituted as one of the grounds for the issuance of the writ and in his suggestions in support of his petition *755 lie urged that, the court in thus proceeding contravened our ruling in the Ladd case. This was sufficient. The prime purpose of the constitutional provision authorizing a review by this court of the rulings of the courts of appeals is for the purpose of harmonizing their decisions with those of the Supreme Court, or more briefly put, to eliminate conflicts in rulings. This being the dominant purpose of the power, conferred, we are not and should not be limited to the cases cited, by a relator constituting the sole ground of conflict. Such a construction of our Hule 34 would, in many instances, defeat the purpose of the constitutional provision authorizing a review of the opinions of the courts of appeals, as it not infrequently occurs in determining the existence of a conflict that cases not cited by the reLator are held to be determinative of his contention. [State ex rel. Mo. Gas & Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Shawhan v. Ellison, 273 Mo. 218; State ex rel. Gordon v. Trimble, not reported.] Illustrations of this character are found where the relator lias not cited the last controlling opinion of this court but has cited earlier cases. In fact we have entertained jurisdiction in cases where the allegations in regard to a conflict were specific only as to the character of same and the rulings relied on to support the relator ’s contention were not set forth in his petition but in his suggestions in support of the latter. Neither reason nor authority can therefore be properly invoked to sustain a contention that this case should be permitted to ride off on the ground that Ladd v. Forsee was not cited by the relator in his petition. tinder the rule of limitation adopted by this court in the Berkshire case, 287 Mo. 654, the application for this writ was not made within the time therein limited. It may be sufficient to say that so far as applicable to this case the question as to the timeliness of the relator’s application was foreclosed by the issuance of the writ herein. The importance of a judicial determination of the question here involved constitutes a sufficient reason for the court’s action in this regard and is ample to sustain the propriety of tlie court’s action. A more deliberate examination of this record as disclosed by the Court of Appeals’ opinion but tends to confirm the correctness of our ruling in granting the writ despite the limitation in the Berkshire case. II. Under the State Constitution, each of the courts of appeals is required to consist of three judges, two of which shall constitute a quorum. [Sec. 3, Arndt. Const. 1884; Sec. 14, Art. 6, Const. Missouri.] In the case of a vacancy in any judicial position the Constitution provides that it may be filled in the manner provided by law. [See. 32, Art. 6, Const. Missouri.] While ampie provision is made in the Constitution and the statute for the filling of vacancies in the office of circuit judge, in neither *756 the- Constitution nor the statute is there to be found a provision for the selection of a special judg-e in a case pending in a court of appeals, except where the judges sitting are equally divided in opinion, [Sec. 11, Art. 6, Const. Missouri.] It is axiomatic that judicial power can only be conferred upon a court or a person by the authority of the law. Where, therefore, a court, as at bar, is unable to perform its judicial functions through a lack of the requisite number of judges to constitute a .quorum, the parties litigant cannot remedy the defect and set the wheels of judicial machinery in motion by the selection of judges to fill the vacancies. The act of the parties in their attempt to confer judicial power being futile their consent to the selection of judges, regardless of its form, will not’ estop them from denying the jurisdiction of the court. 'There can be no waiver where a court is without power to hear and determine the facts. [Jones v. Sanderson, 287 Mo. l. c. 183.] More concretely stated, upon Judge ArNold becoming recusant by his own plea, he bereft himself of power to act with Judge BlaNd in the selection of a special judge. If disqualified for one purpose he, became disqualified for all purposes so far as the instant ease is concerned. Unless it lie held, therefore, that a special or de facto judge can be created by the act of Judge BRAND alone the selection of Judge McOune was a mere nullity. III. The ruling in Ladd v. Forsee, 163 Mo. l. c. 509, is urged by the relator as having been contravened by the opinion of the Court of Appeals, in which the Supreme Court tersely said: "Parties to a suit cannot confer jurisdiction upon a (,oul.t or special judge by consent or agreement, except in the manner prescribed by law.” The Ladd case follows the rule announced in Bank v. Graham, 147 Mo. 250. While the decisions in these cases were in regard to vacancies in 'the office of circuit judge, the rule announced as to the necessity of legal authority for the investing of judicial power is general in its application. The question here involved is not one dependent for its solution upon a showing in the one instance of a judge’s incapacity, nor in the other of his recusancy, nor to any personal objections to Judge McCnne. These questions, as in cases con-‘ cerning vacancies in the office of circuit judge, become, pertinent because of the existence of a law authorizing the selection of special judges'and hence their qualifications become material, but not in the absence of any law on the subject. Nor does the contention as to the lack of timeliness of the relator in raising the question of contravention merit more than passing consideration. The question here is solely one of jurisdiction. It was properly raised in the relator’s petition for this writ. Whether it would have been timely if other *757 questions liad alone been urged as grounds of contravention and the question of the court’s jurisdiction had been apparent upon the record, as at bar, but had not been saved, it is not necessary to decide in this connection. From all of which it follows that the Court of Appeals, as constituted by the act of the parties, in its hearing and attempted final adjudication of the ease of Allen v. Best, supra, was without any authority in law; and that its ruling to the contrary was in contravention of the decision of this court in Ladd v. Forsee, supra. The record of the Court of Appeals is therefore quashed. Graves, J., concurs; White. J., concurs in a separate opinion, in which Rag-land, J., concurs; Blair, Jdissents in a separate opinion in which Ajhvood, J., concurs; Gantt, J., not sitting.