State ex rel. Lancashire Insurance v. Rombauer

Macfarlane, J. Eelator asks for a writ of mandamus against respondents, as judges of the St. Louis Court of Appeals, to require them to transfer to the Supreme Court a case of Charles P. Fink against relator, pending before said court of appeals, on appeal from the Pike county circuit court. The writ is demanded on two grounds: First, because the decision of said court of appeals is in conflict with certain decisions of the Kansas City Court of Appeals; and, second, because the construction of the Constitution of the State of Missouri is involved in the case. Eespond-ents waived the issuance of an alternative writ, and made return to the petition, the substance of which is a denial of the right to a peremptory writ of mandamus. The case was submitted upon an agreed statement of facts to the effect that on the fourth of March, 1893,Charles P. Fink commenced a suit against relator, in the Louisiana court of common pleas. A summons was issued and served. At the May term of said court, 1893, on the application of the defendant, the venue was changed to Ealls county; and afterward, also on application of defendant, the venue was again changed to the circuit court of Pike county. Defendant answered, and the cause was tried in the Pike circuit court, at the December term, 1893, and resulted in a judgment for plaintiff, from which defendant appealed to the St. Louis Court of Appeals wherein the judgment was reversed and the cause remanded for a retrial. On the eighteenth of July, 1895, defendant (relator in this court) filed a motion to abate the suit on the ground that “the Louisiana court of common pleas had not at the time of the institution of this [124] suit, any legal existence, the said court having been abolished by the provisions of the Constitution of this State, which was adopted on the thirtieth day of October, 1875, and went into effect on the thirtieth day of November, 1875.” This motion was overruled, and defendant duly excepted. Defendant thereupon refiled its answer, the cause was tried again in said circuit court, and resulted in a verdict and judgment for plaintiff for $1,900, from which defendant again appealed. The appeal was sent to the St. Louis Court of Appeals, from which relator seeks, by this proceeding, to have the appeal transferred to this court. The mption to transfer was not made in the court of appeals until after the judgment had been affirmed by that court. I. The Constitution (and art. 6, sec. 6) requires the court of appeals to certify to this court, for decision, ’ all cases wherein a judge of the former shall deem the opinion therein to be “contrary to any previous decision of any one of said courts of appeals or of the Supreme court.” In the case of the State ex rel. v. Smith et al., 107 Mo. 527, it was ruled that whether such conflict exists is a question for the sole determination of the judges of the courts of appeals, and the Supreme Court is given no power to determine it for them. Respondents each say, in return to this- writ, that, in their opinion, no such conflict exists. On the authority of the case cited, a peremptory writ of mandamus, claimed on the ground that there is such conflict in the decisions, must be denied. II. Relator insists that the Louisiana court of common pleas was abolished by section five of the schedule of the Constitution of 1875; that the determination of that question involves the construction of the Constitution, and therefore a constitutional ques [125] tion is involved which gives this court exclusive jurisdiction of the appeal. We do not think so for this reason: The circuit court of Pike county had jurisdiction of the subject-matter of the suit, and defendant by appearing therein and defending the suit, submitted its person to the jurisdiction of that court. Said court, therefore, had complete jurisdiction to render the judgment appealed from, and it is entirely immaterial whether the Louisiana court of common pleas originally had jurisdiction or not. Hembree v. Campbell, 8 Mo. 573; Powers v. Browder, 13 Mo. 154; Chouteau v. Allen, 70 Mo. 290. The plea to the jurisdiction of the Louisiana court of common pleas, filed after a trial in the circuit court of Pike county, came too late to affect the jurisdiction the said circuit court had already acquired to hear and determine the case. The plea was therefore wholly irrelevant as is also the constitutional question attempted to be raised thereby. A peremptory writ of mandamus is denied. All concur, except Babclay, C. J., who dissents.