Tilford v. Ramsey

Bliss, Judge, delivered the opinion of the court. This case has once been before the court, and is reported in 37 Mo. 563. A trial by jury has since been had at a special term of the St. Louis Circuit Court, and verdict and judgment for the plaintiff. This judgment was reversed at a general term of the said court, and cause remanded, and is again brought hereby writ of error. We must first inquire whether there is such a final judgment as will authorize this court to review it. The defendant has cited numerous cases in the U. S. Supreme Court, and in the State of New York before the change of its code in this respect, where judgments of reversal and remander are held not to be such final judgments as will sustain an appeal or writ of error. But the general question is not an open one in Missouri. The Supreme Court, in Rankin v. Perry, 5 Mo. 501, and in Strause v. Dreman et al., 41 Mo. 289, have settled, and well settled it, in favor of the right of appeal, and we need only to refer to those cases. The only question that arises in this branch of the case pertains to the peculiar organization of the Circuit Court in St. Louis county. Section 9 of the act of December 19, 1865 (Gen. Stat. 1865, pp. 888-9), provides for general terms, of the court, composed of all the judges sitting as a court in bank ; also for special terms. The special term is held by one judge, who, with the exception of certain questions to be reserved for the general term, has “ all the powers and functions ho might have or exercise if he were the sole judge of the courtand, by section 13, the court at said special term has power to vacate and modify its own judgments, decrees, or orders rendered or made at such term, as if the court were constituted with a single judge. So, with the exception of certain questions and issues of law reserved by section 10 for the .general term, the Circuit Court of St. Louis county at its special term seems to be in all material [418] respects like the other Circuit Courts of the State. We have thus a Circuit Court held by a single judge, with ordinary jurisdiction, and with complete control of its records for the term. The statute also provides for another Circuit Court to be held by the three judges of the county, independent of and supervisory of the Circuit Court at special term. This is called the Circuit Court sitting in general term, or sitting in bank, and is claimed to be analogous to the District Courts outside of St. Louis county. This will depend, so far as the question now raised is concerned, not at all upon the name of the court or the dove-tail character of the jurisdiction of the two branches, but upon the provisions of the statute pertaining to writs of error and appeals. If these provisions are substantially like similar provisions in relation to Circuit and District Courts of the State at large, the analogy, so far, exists. The constitution gives to the District Courts appellate jurisdiction from the final judgments of the Circuit Courts, and the statute provides the manner of bringing such judgments into court by appeal or writ of error. Section 14 of the act organizing the St. Louis Circuit Court, as it stood when this ease was appealed, provided that a “judgment or decree rendered, or order made, at special term, may be reversed, vacated, or modified at general term, for errors appearing'in the record at special term,” etc.; and directed that “the court shall prescribe by rule the manner in which every such judgment, decree, or order shall be brought up to general term for review, and remanded thence to special term.” The analogy, so far, is that the District Court has appellate jurisdiction over judgments of the Circuit Court, and the Circuit Court of St. Louis county in general term has appellate jurisdiction over the Circuit Court in special term. The principal difference consists in the facts that the law provides the manner of bringing cases from the Circuit Courts to the District Courts, while in St. Louis the same thing may be provided for by rules of court; and, also, the St. Louis Circuit Court, at general term, has appellate jurisdiction over said court at special term in other than final judgments. The appellate jurisdiction of the Supreme Court over final [419] judgments of the District Court has, as we have seen, received judicial interpretation, and we are only to consider the character of its jurisdiction over judgments of the St. Louis Circuit Court in general term. This matter is clearly settled by section 17 of the act reorganizing said court. It provides that “in cases of final judgment or decision of the said court at general term, an appeal to the Supreme Court may be taken, or a writ of error prosecuted therefrom, as is now or may be hereafter provided, by general law, in regard to the removal of causes from other Circuit Courts, or from District Courts to the Supreme Court,” etc. The words “ as is now or may be hereafter provided” refer to the whole subject matter of the appeal — as well to the character of the final judgments appealed from as to the manner of taking them up ; so that as to the subject of appeals, as provided by this section, the Supreme Court holds the same relation to the Circuit Court of St. Louis county in general term as to the District Courts of the State. Defendant’s counsel submits to us a transcript of an act just passed, amendatory of the statute under consideration, in which, as an amendment to section 14, power is given to the court in general term “to award new trials, reverse or affirm the judgment rendered or decree or order made at special term,” and which, upon conditions specified, provides for appeals to the Supreme Court from any “ award of a new trial, and from any judgment rendered or decree or order made at general term reviewing or modifying a judgment rendered or decree or order made at special term,” * * “in the same manner and with like effect as is provided for by law in respect to appeals from final judgments rendered by said court at general term; ” and it is urged that this grant of right of appeal from an award of a new trial is a legislative interpretation of the law as it stood, and a decision that no such right previously existed. This act can have no such force. As a matter of fact, it is not probable that one-tenth of the members of the Legislature ever considered the question ; and as a matter of law, the Legislature, while it may make laws, has no power to interpret such existing laws as do not apply to its own duties.. This act is an amend [420] rnent to section 14, and enlarges the supervisory power of the court in general term over its action in special term, and grants a right of appeal to the Supreme Court in many cases where it did not exist, but leaves untouched section 17, which gives appeals from final judgments. The claim cuts the defendant’s own throat. This amendatory act gives the court in general term power to award new trials at special term, which, according to the claim, is a legislative interpretation of the law as it stood, and a decision that no such power existed before. If so, the judgment in review is erroneous for that reason, and should be reversed. The defendant complains of the instruction given for the plaintiff. It is not necessary to set it out, but only to remark that ii conforms to the opinion of the court in 37 Mo. 563, and seems to be carefully drawn for that purpose. The court, indeed, there decided thé whole merits of the case. There was no defense to the note, except that it was gjven for a private debt without the knowledge of the defendant, the other member of the firm; and the court held that it was given for a debt of the firm, and that the one who gave it had a right to do so. The various instructions asked by defendant either contradict the opinion referred to or are unsupported by evidence, and were, hence, properly refused. It is admitted that the judgment rendered was for too much, and the plaintiff has filed below, though too late, a remitter of the excess. Being filed out of time, we will treat it as filed in this court. When a judgment is sought to be set aside or reversed for this reason only, justice always demands that any court that has power to render judgment should accept the remitter and enter judgment for the true amount. As the plaintiff was at fault in this matter below, it is right that he should pay the costs occasioned by his negligence. The defendant also claims that the order of the Circuit Court at general term, reversing the judgment and granting a new trial, rests to a great extent in the discretion of the courts, and cannot be objected to here. This is true when the new trial is granted by the same court in which the first trial was had. A certain discretion is left to the judge who heard the case ; but the doctrine does not apply to courts .of error. We have seen that the Circuit [421] Court of St. Louis county, in general term, is an appellate court, like the District Courts outside of said county; and its decisions in regard to the action of the Circuit Court in special term, made under section 17 of the act referred to, should be governed by the rules applicable to appellate courts. The application of the defendant for a new trial, founded upon newly-discovered evidence, rests upon no foundation whatever. He files an affidavit that since he testified he has looked on his books, and is now able to fix the date of a certain conversation with plaintiff’s agent. If the date was material, why did he not look them over before.? He does not show that he could not have done so, and gives no excuse whatever for the neglect. No rule is better settled than that new trials for such causes will never be allowed unless the party has used due diligence to discover and produce the evidence. Any other rule would render trials endless. This case having been once decided substantially by this court, and the matter being all before us, judgment will be rendered for the amount of the note, with interest at six per cent, from maturity, which the plaintiff should have recovered at the last trial in the Circuit Court. And as it was the plaintiff’s fault that the excess was not at once remitted, he should pay the costs of the Circuit Court in general term, and of this court. The other judges concur.