State ex rel. Third National Bank v. Smith

Black, J. This case is now before us on a return made by the judges of the Kansas City court of appeals to an alternative writ of mandamics, and the question is whether a peremptory writ should be issued notwithstanding the return. The facts are these: The relator, the Third National Bank of Sedalia, commenced a suit against Mortimer, Monroe and Edward Carton in the Pettis county circuit court. The property of the defendants was attached under the writ, 'and the defendants were duly served with summons. On the petition of the defendants, the venue of the cause was changed to the Johnson county circuit court. The defendants then withdrew the plea in abatement, and filed a motion to quash the writ of attachment, on the ground that it had been issued on an insufficient affidavit. The affidavit is in due form and sets out a good ground of attachment. Mr. Parker, the president of the bank, made oath to it; but in the hurry he failed to sign it, and the clerk who administered the oath neglected to sign the jurat. The circuit court permitted the plaintiff to file an amended affidavit, and then overruled the motion to quash. The cause proceeded to judgment against the defendants, and they appealed to the Kansas City court of appeals. [529] That court, by an opinion in which, all the judges agreed, came to tile .conclusion that the paper filed for an affidavit was a nullity, and, therefore, not amendable. Accordingly,- that court reversed the judgment and remanded the cause. On a motion for rehearing two of the judges adhered to their former opinion, and Judge Smith filed a dissenting opinion. Thereupon the plaintiff commenced this proceeding, praying this court to direct that court to certify and transfer the cause to this court under section 6 of the amendment to the constitution adopted in 1884. The relator makes the opinion filed in that cause part of the pleadings in this case. The averment is that Judge Smith deemed the opinion of his associates in conflict with seven cases in this court and two reported in the appeal reports. The judges of that court all join in a return, in which they say they refused to certify the cause to this court for these reasons: First, because the decision of the court was not deemed by Judge Smith contrary to any previous decision of either court of appeals or of this court; second, because they were not asked to certify the cause here during the term at which the decision was rendered. Prom the opinions filed on the motion for a rehearing it appears Judges Gtll and Ellison were of the opinion that the affidavit was a nullity, and, therefore, not amendable, since it was not signed by the affiant or the clerk. They were also of the opinion that the defects were not cured by pleading in abatement. Judge Smith, in his dissenting opinion, first lays down the proposition that an affidavit consists of three parts, and then holds that, though this affidavit was defective in two respects, still the statute gave the circuit court authority to allow the amendment. He then says an affidavit is good, though not signed by the affiant, and cites cases in this court in support of the proposition, and holds that the affidavit was defective in one essential respect only, and that it was amendable. He [530] was of the further opinion that defendants waived the defects by pleading to the affidavit. In the course of his opinion he cites several cases from this court and reasons from them by way of analogy ; but he does not-claim that any of them are decisive of the case he had in hand. This is the substance and effect of his dissenting opinion. The section of the constitution, under which it is-claimed the cause should be certified to this court, is in these words: “ When any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals, or of the supreme court, the said court of appeals must, of its own motion, pending the-same term and not afterwards, certify and transfer said cause or proceeding and the original transcript therein to the supreme court,” and it is then made the duty of the supreme court to hear and determine the cause. It is to be observed in the first place that the Kansas City court of appeals has exclusive and final appellate jurisdiction in a large class of cases, and it is conceded on all hands that the case in question falls within that class. This court has a superintending control over that court by the writs of mandamus, prohibition and certiorari; but it has no appellate jurisdiction whatever from that court. It must, therefore, be perfectly manifest to anyone that the question which we have to deal with at this time is not whether that court erred in its decision; but the simple question is, whether Judge Smith deemed the opinion of his associates in conflict with any prior decision of this court or either of the courts of appeals. The question is then presented who is to say what his judgment or opinion was in respect of this question ? The constitutional provision will admit of but one answer, and that is this, that he must decide the question for himself. Being of the opinion that the decision was contrary to [531] some prior case, it became his duty to so say, and to say it in terms as to which there could be no mistake. Now he has not said that he deemed the opinion of his associates in conflict with any previous decision. He has not used language to indicate that he entertained any such an opinion; nor did he intimate that the cause should be certified and transferred to this court. What we, therefore, are asked to do in this case is to take up his dissenting opinion and from it spell out by a process of reasoning that he was of the opinion that the decision of the other judges was in conflict with some prior opinion, and this we are asked to do in spite of the return made by him and the other judges under the sanction of their official oaths. We are in some way expected to make him say what he did not say for himself. This we have no right to do. The constitutional provision has conferred no such power upon this court, and such a power is not to be assumed.» The duty of that court to certify the cause to this court did not and could not arise until one of the judges said plainly that he deemed the opinion of his associates in conflict with some prior opinion. As aptly stated in State ex rel. v. Philips. 96 Mo. 571: “It is for the dissenting judge to solve that question in‘his own mind and conscience, give it expression in authentic form upon the records of the court, in express terms ; and only when this is done does it become the duty of the court to certify and transfer the cause.” In that case, as in this, we were asked to take up a dissenting opinion of one of the judges of the court of appeals, and from it deduce the conclusion that he deemed the majority opinion in conflict with some prior decision, though the judge had not so stated, but we promptly declined the task and made answer to the request in the language before quoted. The section of the constitution was designed to furnish a means by which the courts of appeals can keep their rulings in harmony and also in accord with the rulings of this court. But the amendment has other [532] objects in view which are not to be cast aside. Those courts were given exclusive and final appellate jurisdiction to enable this court to dispose of its crowded docket. To grant the writ in this and like cases, is to make the writ of mandamus perform the functions of an appeal, and thus do indirectly what the constitution says shall not be done directly. It follows from what has been said that the writ should be, and it is, denied. Sherwood, 0. J., and Gantt and Thomas, JJ., dissent. Judges Brace, Barclay and Maoearlane concur.