Opinion
December 16, 1932.
1. APPEAL AND ERROR: Workmen's Compensation: Retrospective Ruling. Where a former ruling in a proceeding begun under the Workmen's Compensation Law required a motion for a new trial to be filed in order to obtain a review in the Supreme Court, a later ruling that no such motion was required did not act retrospectively.
2. APPEAL AND ERROR: Workmen's Compensation: Retrospective Ruling: Motion for New Trial. In a proceeding under the Workmen's Compensation Law begun before a ruling of the Supreme Court that a motion for a new trial was unnecessary, such motion filed at the judgment term carried the case over to the following term when it was acted upon, permitting an appeal at the latter term.
PEREMPTORY WRIT ORDERED.
Fordyce, White, Mayne Williams and Paul S. Schmid for relators.
(1) Previous to the decision of this court in State ex rel. May Department Stores v. Haid, 38 S.W.2d 44, it was the law in Missouri, definitely and clearly announced, that in cases of this type motions for new trial were necessary and essential to be filed in the same term at which the judgment or decision of the circuit court was made in order to preserve the right to appeal from that judgment or decision. City of Macon v. Pub. Ser. Comm., 266 Mo. 484; Brocco v. May Department Stores, 22 S.W.2d 832; Dougherty v. Manhattan Rubber Mfg. Co., 29 S.W.2d 126; Lilly v. Moberly Wholesale Grocery Co., 32 S.W.2d 1099. (The last two were decided subsequent to the time of the February Term, 1930.) (2) Relators, having relied upon the decisions of this court and of the St. Louis Court of Appeals, and having gauged their methods of procedure and acquired rights pursuant thereto, should not now be divested of the rights thus obtained in following the methods of procedure therein outlined. State ex rel. May Department Stores v. Haid, 38 S.W.2d 53; Brewer v. State, 121 So. 689; Douglas v. Pike County, 101 U.S. 677, 25 L.Ed. 971; Mountain Grove Bank v. Douglas County, 146 Mo. 42; Klocke v. Klocke, 276 Mo. 572; Kelly v. Rhoads, 75 Am. St. Rep. 906; Moore-Mansfield Construction Co. v. Electrical Installation Co., 234 U.S. 619, 58 L.Ed. 1506; Campbell v. Perth-Amboy Mut. Loan, Homestead Bldg. Assn., 74 A. 144; Lyon v. Richmond, 2 Johns Ch. 51; Gillespie v. Wilson, 221 P. 84; Commonwealth v. Fidelity Trust Co., 215 S.W. 42; Bank of Philadelphia v. Posey, 95 So. 135; State v. Toth, 90 A. 1125; Hill v. Atlantic N.C. Railroad Co., 143 N.C. 539, 55 S.E. 854, 9 L.R.A. (N.S.) 625; Jones v. Williams, 71 S.E. 222, 155 N.C. 179, 36 L.R.A. 439; Jackson v. Harris, 43 F.2d 516. (3) This court itself held in State ex rel. May Department Stores v. Haid, 38 S.W.2d 44, that its decision in that case should only be prospective in its operation. See pages 51, 52 and 53 particularly. (4) Not only had relators the right to rely upon City of Macon v. Public Service Commission, 266 Mo. 484, and Brocco v. May Department Stores, 22 S.W.2d 832, but the decision of the St. Louis Court of Appeals in the Brocco case was a decision by a court of last resort and binding upon relators, since at the time of that decision there was no conflicting ruling of the Supreme Court. State ex rel. Holman v. Trimble, 316 Mo. 1050; Harrison v. Jackson County, 187 S.W. 1184; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1073; State ex rel. Car and Foundry Co. v. Daues, 313 Mo. 690; State ex rel. School District v. Gwaltney, 28 S.W.2d 678; United States v. Simonetti, 44 F.2d 553; Dailey v. Pugh, 131 N.E. 839; State ex rel. Tummins v. Cox, 313 Mo. 677. (5) Since a holding that the decision of this court in State ex rel. May Department Stores v. Haid, supra, would deprive relators of their right to try the case of Henry v. Blackmer and Post Pipe Company on its merits, such a ruling would be unreasonable, oppressive and absurd, and hence such a ruling should be avoided. Rogers v. Natl. Council, 172 Mo. App. 725; State ex rel. Jamison v. St. Louis-S.F. Ry. Co., 318 Mo. 290; State ex rel. v. Turner, 141 Mo. App. 325; Johnson v. Ragan, 265 Mo. 435. (6) When, on June 12, 1931, claimant and employer and insurer both appeared before respondent, and claimant first, and then employer and insurer, both argued the case of Henry v. Blackmer and Post Pipe Company on its merits to the respondent, before claimant bethought herself of tossing in a technical objection to the jurisdiction of the respondent, respondent had acquired complete jurisdiction to try said case on its merits. Thompson v. Lea, 28 Ala. 453; Natl. City Bank v. Walker, 58 So. 581; Ray v. Trice, 37 So. 582; Dudley v. White, 31 So. 830, 44 Fla. 264; Board of Commissioners v. Stone, 53 P. 616; Igo v. Bradford, 110 Mo. App. 672; Prince v. Gundaway, 157 Mass. 417, 32 N.E. 653; Majenica Tel. Co. v. Rogers, 43 Ind. App. 306, 87 N.E. 165; Alvey v. Wiggs, 53 Ind. App. 263, 101 N.E. 637; Hazleton v. De Priest, 143 Ind. 368, 42 N.E. 752; Newman v. Railway Officials Employees Accident Assn., 15 Ind. App. 29, 42 N.E. 650; Indianapolis Union Railroad Co. v. Ott. 35 N.E. 517; L. N. Railroad Co. v. Lile, 45 So. 701; Stevens v. Nebraska Iowa Ins. Co., 45 N.W. 284; Lloyd v. Reynolds, 41 N.W. 1072; Hope v. Blair, 105 Mo. 93; State ex rel. v. Shoemaker. 257 S.W. 1053; Taylor v. Hurshman, 35 S.W.2d 379; State ex rel. Deems v. Holtcamp, 245 Mo. 666; St. Louis v. Waterman, 277 Mo. 226; State ex rel. Walnut St. Railroad Co. v. Neville, 110 Mo. 348; Rosenheim v. Hartsock, 90 Mo. 365; Rodney v. Gibbs, 181 Mo. 1; Bomer v. Railroad Co., 152 Mo. App. 357.
Frank C. O'Malley for respondent.
(1) Right to appeal is purely statutory. Arcadia Timber Co. v. Evans, 264 S.W. 810, 304 Mo. 674; Dorris Motor Car Co. v. Colburn, 307 Mo. 137; Hurley v. Universal Clay Co., 278 Mo. 415. (2) Jurisdiction of subject-matter cannot be conferred even by express agreement of the parties. Randolph v. Mauck, 78 Mo. 468. And the appearance of both parties will not confer jurisdiction. A literal compliance with the appeal statute is necessary. The judgment of the lower court is res adjudicata and can only be reopened according to law. St. Louis v. Gunning Co., 138 Mo. 355; Finley v. United Ry., 238 Mo. 6. (3) After the lapse of the term of court at which the ruling of the Compensation Commission was set aside, no appeal having been taken during that term, neither the circuit court nor the Court of Appeals had any further jurisdiction. State ex rel. v. Haid, 38 S.W.2d 44. (4) When the circuit court reversed the order of the Commission that order became a final judgment, and after the expiration of the term the circuit court had no further jurisdiction of the subject-matter. State ex rel. v. Calhoun, 201 Mo. App. 374; Finley v. United Ry. Co., 238 Mo. 6; State v. Brannon, 212 Mo. 175. (5) A decision by the Court of Appeals cannot afford a basis for the application of the doctrine of stare decisis in this court. Sedalia, etc., v. Donohue, 190 Mo. 16; State ex rel. v. County Court of Cass County, 166 Mo. App. 159.
This is an original proceeding in mandamus wherein relators seek to compel respondent as Judge of Division No. 2 of the Circuit Court of the City of St. Louis, to proceed with a retrial of the case of Elizabeth Henry v. Blackmer Post Pipe Company.
Our alternative writ was issued, to which respondents made return.
Relator's petition reveals the following pertinent facts:
On December 16, 1927, Elizabeth Henry, dependant of James Henry, deceased, filed with the Workmen's Compensation Commission her claim for death benefits against Blackmer Post Pipe Company, employer of her deceased husband, and T.H. Mastin and Company, insurer. The commission found against the claimant and awarded her no compensation, and on her appeal the case was certified to the Circuit Court of the City of St. Louis. On March 17, 1930, during the February Term, 1930, of said circuit court, said court set aside the final award of the commission in favor of the employer and insurer, and remanded said cause to the commission with directions to award compensation in accordance with the Workmen's Compensation Act. Within four days thereafter, and during the February Term, 1930, of said court, the employer and insurer duly filed their joint motion for new trial. This motion was not acted upon at the judgment term. Subsequently, on June 30, 1930, and during the June Term, 1930, of said court, the motion for new trial was sustained.
[1, 2] In the case of State ex rel. May Department Stores v. Haid, 327 Mo. 567, 38 S.W.2d 44, this court held that a motion for new trial is not required when an appeal is taken from a judgment of a circuit court in a proceeding under the Workmen's Compensation Law, and because not required, such a motion, when filed, has no force or effect, and does not carry the case over and authorize the granting of a new trial at a subsequent term.
Prior to our decision in the Haid case, this court as well as the Courts of Appeals held that when an appeal is taken from a judgment of a circuit court in any proceeding under the Workmen's Compensation Law, the appellant must file a motion for new trial and a bill of exceptions in order to obtain a review of the whole record in the appellate court, and that otherwise the appellate court's review is limited to the record proper. [Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126; Brocco v. May Department Stores Company, 22 S.W.2d 832; Lilly v. Moberly Wholesale Grocery Co., 32 S.W.2d 1099.]
In the Elizabeth Henry compensation case, respondent as judge of the trial court, followed the Haid case and refused to proceed with the retrial of the compensation case on the ground that the motion for new trial filed in that case did not have the effect of carrying the case over beyond the judgment term, and did not authorize the granting of the new trial which was granted at a term subsequent to the judgment term, the result of which was to leave the original judgment of the circuit court in force and effect.
The compensation case was tried and determined on March 17, 1930, during the February, 1930, term of the circuit court. The motion for new trial was filed within four days thereafter, and at the same term. At the subsequent June, 1930, term of said court, and on June 30, 1930, the motion for new trial was sustained. The opinion of this court in the Haid case was handed down on April 7, 1931. So the question for our determination in this mandamus proceeding is whether our decision in the Haid case operates retrospectively as to the Elizabeth Henry compensation case. If that decision does operate retrospectively, the trial court was right in refusing to proceed with a retrial of the compensation case, because under the decision in the Haid case, the filing of the motion for new trial in the compensation case did not carry the case over and authorize the granting of the new trial at a subsequent term. On the other hand, if the decision in the Haid case does not operate retrospectively, then the Henry compensation case should be governed by the rules of procedure approved in the decisions in the Dougherty, Brocco and Lilly cases which required the filing of a motion for new trial in compensation cases, which motion, when timely filed but not acted upon at the judgment term, as was done in the Henry case, necessarily carried the case over and authorized the granting of the new trial at a subsequent term. These questions were considered and determined by this court en banc on July 7, 1932, in a well-considered opinion by HENWOOD, J., in the recent case of State ex rel. Midwest Pipe Supply Co. v. Haid, 330 Mo. 1093, 52 S.W.2d 183. We held in that case that our decision in State ex rel. v. Haid, 327 Mo. 567, 38 S.W.2d 44, which we have referred to in this opinion as the Haid case, should not operate retrospectively as to Workmen's Compensation cases in which litigants followed the rule of practice laid down in the Dougherty, Brocco and Lilly cases. Our reasons for so holding are clearly stated in that case and no useful purpose would be served by ploughing the ground again.
For the reasons stated, it must be held that the Elizabeth Henry compensation case should be governed by the rules of procedure laid down in the Dougherty, Brocco and Lilly cases, which required the filing of a motion for new trial as a prerequisite to an appeal. This being true, the motion for new trial which was timely filed by the claimant at the judgment term, carried the case over and gave the court jurisdiction to grant a new trial at a subsequent term. The granting of the new trial left the case pending for retrial in the circuit court. It therefore follows that our alternative writ heretofore issued commanding the retrial of the case in the circuit court, should be made peremptory. It is so ordered. All concur.