State ex rel. Williams v. Anthony

Smith, P. J. This is an original application to this court for a writ of prohibition. A succinct history of the case may be stated in this way: On.the. thirtieth day of June, 1893, the probate court of Q-entry county rendered a judgment in favor of the defendants in the ease of Lizzie D. Patton et al. v. Henry F. Williams, et al. Afterward and in due time the said plaintiffs endeavored to take an appeal from the said judgment to the circuit court by filing their affidavit and bond for such appeal, and that upon — 549 — the filing of said affidavit and bond, the said probate judge announced that an appeal would accordingly he granted. It appears that afterward, during the vacation of said probate court, the judge thereof in vacation transmitted to the clerk of the cir.cuit court the original papers in the said cause, including the affidavit and bond for the appeal, together with the transcript of the proceedings of the probate court in said cause. It did not appear from the said transcript that the said probate court either during the term of the court, or subsequently during vacation, made any entry of record, or indorsement on said appeal bond, formally approving the same. Nor did it appear from said transcript that said probate judge, either in term time or vacation, made any order granting an appeal in said cause. There was a trial of said cause in the circuit court, which resulted in judgment for the defendants, from which an appeal was prosecuted by the plaintiffs to this court, where it was ruled by us that as the appeal bond was not approved and no appeal had been granted by the probate court, or the judge thereof in vacation that the circuit court did not acquire jurisdiction of the cause by the appeal, even though the transcript and papers in the case where lodged in the circuit court. 62 Mo. App. 339. We therefore reversed the judgment of the circuit court and remanded the cause, with directions to that court to dismiss the appeal. Subsequently the circuit court, in obedience to the mandate of this court made an entry of record dismissing the appeal in said cause. Two days thereafter the defendants filed in said court an application stating, among other things, “that this cause was originally tried and determined in the probate court of Q-entry county, on the thirtieth day of June, 1893, and that thereafter, to wit, on the fifth day of July, 1893, and — 550 — within ten days after the finding and judgment the-plaintiffs filed their proper affidavit and bond for an appeal in said cause to the circuit court of Gentry county. That thereafter, to wit, on the fourth day of August, 1893, the said probate court, or the judge thereof in vacation, filed in the office of the clerk of this court what purports to be a transcript of the proceedings of said probate court in said cause, accompanied by the original papers in said cause, but that the said transcript does not recite nor show that the-said probate court, or the judge thereof in vacation ever approved the said appeal bond of plaintiffs, nor that any order of record was ever made approving said bond; that said transcript fails to recite or show that-the said probate court or the judge thereof in vacation-ever granted an appeal in said cause, or that any order of record was made granting an appeal, therein, although the judge of said probate court, at the time of filing the affidavit and bond for appeal as hereinbe-fore stated, verbally announced that 'an appeal would be granted. Wherefore the plaintiffs pray the court to-make a rule and order on said probate court, or the judge thereof in vacation, to grant an appeal to plaintiffs in said cause, and to transmit to the clerk of this court a transcript of his proceedings therein, or to appear on a day to be named in such order and show cause why the same should not be done.” ■ ■ And thereupon it was ordered by the said court that the judge of the said probate court grant an appeal in said cause or show cause why the same should not be granted, on the first day of the next term of said-circuit court. Afterward, and before the day on which said rule was returnable, upon application of the plaintiffs in said cause, a provisional order was made by one of the judges of this court, to the effect that the said judge of — 551 — the Gentry circuit court, the judge of the probate court of Gentry county, and the defendants in said cause, in which the appeal had been dismissed, appear before this court at a day therein stated and show cause, if any they had, why a writ of' prohibition should not issue as prayed, etc. The respondents in due time made their return to the provisional order to which the relators replied. The principal question thus presented for our decision is whether the circuit court had jurisdiction to order the probate court to grant an appeal in said cause and to order the latter court to transmit to the-former a duly certified transcript of the record of the-proceedings therein of the latter. If the order made-by us directing the circuit court to dismiss the appeal is res adjudicate, as relators contend, as to the matters stated in the application of the defendants for the rule in the cause in which the order of dismission was made, then it-is clear that the circuit court was without jurisdiction ’to entertain the application or to award the rule. When a cause has been remanded with special directions, it is out of the power of the court receiving such directions, to open the cause and have a new trial. Chouteau v. Allen, 74 Mo. 56; Shroyer v. Nickell, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116. The mandate in such case is in the nature of a special power of attorney. By it authority and jurisdiction are-granted to the lower court to take such steps as are ordered and such incidental steps as are necessary to carry the mandate into execution. Is has no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters become res adjudicate and can not be reopened. Chouteau v. Allen, 74 Mo. 56; State ex rel. v. Givan, 75 Mo. 516; Connor v. Pope, 23 Mo. App. 344; Pomeroy v. Benton, 77 Mo. 64-80; — 552 — McIntyre v. McIntyre, 24 Mo. App. 169; Stump v. Hornbach, 109 Mo. 277; Hickman v. Link, 116 Mo. 123; Pitkin v. Shacklett, 117 Mo. 547. But it will be seen by reference to the adjudged cases in this state, the most of which have just been cited, that the rule just adverted to has been applied only in those cases in which the trial court had jurisdiction of the cause. No case has been cited, or found by us, applying the rule where the lower court was without jurisdiction of the cause. It will be seen by reference to our opinion in 62 Mo. App. 339 already referred to, that we there ruled that no appeal had been taken from the judgment of the probate court to the circuit court and that consequently the latter court had acquired no jurisdiction of the cause. In this connection it may not be out of place to state that the term appeal, as used in law matters, means the removal of a suit, whether in law or equity, from an inferior to a superior court. Elliott’s App. Procedure, sec. 15. Appellate jurisdiction is the power vested in a superior tribunal (to review and revise the judicial action of an inferior tribunal). If no appeal had been granted by the probate court from its judgment, of course the cause was not removed to the circuit court, and there could be no jurisdiction in the latter court to review and revise the action of the former. The action of the circuit court in giving judgment on the merits of the cause was without its jurisdiction. On appeal from that judgment, it was competent for us, in the exercise of our appellate jurisdiction, to revise the judgment of the circuit court so erroneously given by it. As the circuit court had acquired no jurisdiction of the cause, we, of course, acquired none. Our order directing the dismissal of the appeal was, in effect, an order to the circuit court to strike the cause from its docket. As we had decided there was no — 553 — appeal, we could not, .strictly speaking, dismiss an appeal never taken. "We perhaps were not as accurate in the use of language in our direction to the circuit court as we should have been. If the appeal had been irregularly granted, as, for example, there had been no bond or affidavit filed, or if one or the other, or both had been filed, but were defective in some particular, though the appeal granted in such case would be subject to be dismissed in the circuit court, unless the defect is there supplied, yet, notwithstanding this, the circuit court would, in such case, acquire jurisdiction of the cause. If the 'appeal in the present ease had been like that just stated, the order directing it to be dismissed would have been res adjudícala, as to any fact or point of law that was or might have been urged in opposition to the making of such order. It has long been the recognized law of this state, that when an appeal has teen granted, the power over the subject is functus officio and can not be exercised a second time. Brill v. Meek, 20 Mo. 359. But in the case we are considering, there was no appeal granted, and for that reason the rule just stated can have no application. To apply this rule to the case would be to deny the defendants in the case their statutory right of appeal. There has not been an appeal granted and until there shall be, the question as to whether a party can have more than one appeal can not arise. How can it be said that the defendants are within the rule forbidding more than one appeal in any cause, when, in fact, so far there has been no appeal granted? There is no ease presented of the exercise of the right of appeal the second time and therefore the plaintiffs have no occasion to invoke our interference by the writ of prohibition. — 554 — It must be conceded that the circuit court, by virtue of its supervisory control, had jurisdiction over the alleged action of the probate court neglecting to grant the defendants an appeal from its judgment. If the circuit court, in awarding the rule on the judge of the probate court, in respect to the grant of the appeal, adopted an improper or inappropriate proceeding ta accomplish the end it had in view, the error, if such it was, is the proper subject of review by us on appeal or writ of error. This, we think, is an indisputable proposition. The writ of prohibition should issue only in circumstances where the ordinary remedies are inadequate to the ends of justice. Courts will not. permit this writ, which proceeds upon the ground of an excess of jurisdiction, to take the place of, or be confounded with, a writ of error, which proceeds upon the ground of an excess of jurisdiction which is conceded. And it matters not whether the court below decides correctly or erroneously, its jurisdiction being conceded, prohibition will not go to prevent an erroneous exercise of' jurisdiction. It is a fundamental principle and one which is to be constantly borne in mind in determining whether an appropriate case is presented for the exercise of this extraordinary jurisdiction, that the writ, will never be allowed to usurp the function of an appeal or writ of error. High on Ex. Leg. Rem., secs. 770, 771, 772; Mastin v. Sloan, 98 Mo. 252; State v. Klein, 116 Mo. 259; State ex rel. Hoffman v. Scarrit, 128 Mo. 331. It necessarily follows from the forgoing considerations, that the writ must be denied.