
    State ex rel. Hezel v. Bland et al.
    In Banc,
    March 21, 1899.
    1. Appeals: when judge sits in case. It is not necessary that a judge of an appellate court should meet with the other judges at every stage of a ease before he can he considered as sitting therein.
    2, -: -: case stated. This ease was appealed to a court of appeals, and all three judges were on the bench when it was argued and submitted, and then, without a consultation as to its merits, it was assigned to the presiding judge to prepare the opinion. After-wards the three judges in consultation agreed that the decision would be withheld pending a decision of a like ease in the Supreme Court, and when that Supreme Court decision was published the judge to whom the case had been assigned prepared the opinion, which after consultation between two of the judges, the other being absent, was delivered as the opinion of the court, only the two judges being on the bench at the delivery. Then a motion for rehearing was filed wi'thin the proper timo, and while it was pending the judge who did not sit at the delivery sent a note to the presiding judge stating he considered the majority opinion in conflict with the said previous decision of the Supreme Court and that he was in favor of sustaining the motion for a rehearing, to which the presiding judge replied that he and the other judge had talked the matter over and had concluded to overrule the motion. On the next delivery day, and during the same term, all the judges being present on the bench, the one who had been absent when the majority opinion was handed down, delivered a dissenting opinion, in which he stated that he regarded the said decision of the Supreme Court as the last controlling decision on the subject involved, and that the majority opinion was in conflict therewith, and requested that the ease be certified to the Supreme Court. The record of the court shows an order was made reciting that this dissenting opinion containing the judge’s request that the ease be certified to the Supreme Court had been filed, but as he “was not sitting and took no part when the opinion and the judgment were rendere’d herein by this court, a majority of the judges are of the opinion that no ground for certifying this cause exists within the meaning of the Constitution.” Held, that said judge did sit in the ease, and was entitled to file his dissenting opinion, and to vote on the motion for a rehearing, and the ease must be certified to this court, and relator is entitled to his peremptory writ in mandamus.
    
      626
    
      Mandamus.
    
    PEREMPTORY WRIT AWARDED.
    Hiram J. Grover and DeNis Devoy for relators.
    (1) “A judge sitting in a case,” must be one to whom a case bas been submitted for decision; that is to say, for the application of the law to the facts, which are produced before him. Such application of law to facts may be made without either oral or written argument, and without consultation with any one. (2) Under this definition of a “judge sitting in a case,” mere “sitting” on the bench, hearing the oral argument, and the reading of briefs, constitute a means to an end, to wit, the exercise of a judicial function. This application of law to the facts in appellate courts is chiefly done by the judges when off of the bench. They may be performing this judicial function in their chambers, or at their homes, many hundreds of miles from the place in which the case was submitted, and entirely separated from the other judges, who heard the argument with them. The record may be locked up, but,the mind of the judge is not locked up with it. "With a judge who has heard oral argument, or who has read briefs on the same issues in another case, judicial rumination goes on. (3) Judge Biggs did sit in this case within the true spirit and meaning of section 6 of the amendments of 1884 to the Constitution. Upon his dissenting opinion being filed in the case, asking that the case be certified to this court, that should have been done. (4) The filing of the opinion of Judge Bland concurred in by Judge Bond, on the twenty-first day of June, 1898, did not constitute a decision of this case. State ex rel. v. Phillips, 96 Mo. 573.
    
    Adiel Sherwood for respondents.
    (1) A judge is not “sitting” in “any cause or proceeding” within the meaning of the Constitution, who merely hears an oral argument on tbe part of appellant, wbo knows nothing of the facts contained in the record, who never saw any brief on behalf of appellant (and none were filed by respondents) and who is absent from the State when the majority of the court discusses the facts contained in the record and considers the law applicable thereto and agrees upon and hands down an opinion announcing their conclusion and judgment. (2) Nor does the fact that such judge returns on Saturday, before final adjournment on Tuesday following, at the request of the attorneys for the defeated parties, from another State (after the majority of the court, of which he is a member, not expecting his return, not even knowing his whereabouts, having considered a motion for rehearing have agreed in consultation that it should and shall be overruled), and then prepares a dissenting opinion and files it on Tuesday, when the entry overruling the motion is made of record, make him a judge “therein sitting.” (3) The words “therein sitting” are used here in their legally accepted meaning. “Therein” means “in that,” and refers back to “cause or proceeding.” As applied to any one of the judges of a court of appeals containing three judges, they mean that said judge shall have participated with the other two judges in the consideration of the facts contained in the record and the law applicable thereto, that he has with the other two judges in such participation and consideration reached a determination and agreed upon an opinion announcing their conclusion and judgment. A motion for rehearing does not affect the judgment entered in an appellate court as a result of its announced opinion. Andrews v. Hovey, 124 IT. S. 694; Ex parte Craig, 130 Mo. 594; Sparks v. Life Ind. Co., 61 Mo. App. 117. (5) There is some similiarity between a motion for new trial and a motion for rehearing. It is held here in this State that a motion for a new trial does not affect the judgment entered upon the verdict, because an execution may issue with a motion for new trial pending and not determined. St Francis Mill Co. v. Sugg, 142 Mo. 358; Ex parte Craig, 130 Mo. 594; Childs v. Railroad, 117 Mo. 477; State ex rel. v. Philips, 96 Mo. 570. (6) Any two of the judges of thé St. Louis Court of Appeals constitute a quorum of the court and exercise all of the powers and functions of the court. Sec. 14, art. YI, Constitution. (7) There is every presumption in favor of the correctness of the judgment or action of an appellate court. Ex parte Craig, 130 Mo. 594; State ex rel. v. Smith, 105 Mo. 6; Herndon v. Hawkins, 65 Mo. 265; Bauldin v. Ewart, 63 Mo. 330; Small v. Field, 102 Mo. 120; State v. Duestrow, 137 Mo. 76; Kundoff v. Thalheimer, 12 N. Y. 596; Steamboat Co. v. Baldwin, 14 N. J. L. 442; State v. Caffey, 2 Murphy (N. O.) 320; In re Estate of McCausland, 52 Cal. 568.
   YALLIANT, J.

This is an application for mandamus to compel respondents, who are judges of the St. Louis Court of Appeals, to certify and transfer to this court a cause in which that court has rendered a decision which, it is alleged, one of the judges therein sitting deems contrary to a previous decision of this court. The respondents in their return say that the judge who deems the decision contrary to a previous decision of this court did not sit in the case, and for that reason they refuse to certify it up to this court.

There is a motion on file by respondents to strike out certain evidence but it will not be necessary to pass on the motion, since it will not be necessary to look into the evidence; the petition and return to the alternative writ show admitted and undisputed facts sufficient for adeterminaton of the case; from which sources we gather the following facts:

At the March term, 1897, a suit was pending in the St. Louis Court of Appeals from the circuit court of the city of St. Louis, wherein the Barber Asphalt Company, plaintiff below, was appellant, and Morris Hezel and others, the rela-tors herein, defendants below, were respondents. The cause canie on for hearing in the St. Louis Court of Appeals on Marcb 26, 1897, before tbe Honorable Charles O. Bland, tbe Honorable "William H. Biggs and the Honorable Henry "W. Bond, then and now constituting that court; all three of those judges were on the bench at the time and the cause-was then argued by counsel and duly submitted to the court and taken under advisement. After the case was submitted, without consultation on its merits, it was assigned to Judge Bland to prepare an opinion; afterwards and before an opinion was prepared, the three judges in consultation together agreed that because they were informed that a cause was then pending in this court involving the same questions of law, it would be advisable to withhold a decision of the case they had until they should see the decision of this court in the case they were informed was here. The opinion of this court in that case reached the court of appeals June 7, 1898; then pursuant to the understanding Judge Bland turned his attention to the case in question, and prepared an opinion which, after consultation with Judge Bond, Judge Biggs .being absent, was, on June 21, delivered as the opinion of the court directing a judgment reversing the judgment of the circuit court and remanding the cause. "When the opinion was delivered from the bench, -only Judge Bland and Judge Bond were present. The opinion is signed by Judge Bland, and this memorandum at the foot: “Judge Bond concurs, Judge Biggs, absent.”

On June 30, within the time allowed by the rules of the court, relators, defendants in that suit, filed a motion for rehearing; on July 5, during the same term, and before the motion for rehearing was overruled, the three judges present on the bench, Judge Biggs delivered a dissenting opinion, in which he cited the case of Yerdin v. St. Louis, 131 Mo. 26, and therein stated that he regarded that as the last controlling decision on the subject involved, and that the majority opinion filed June 21 was in conflict with that decision, and requested that the cause be certified to the Supreme Court.

Tbe action of tbe court on tbat request is expressed in its record of July 5, as follows: “Now at tbis day there is filed a dissenting opinion by Judge Biggs, asking tbat tbis cause be certified to tbe Supreme Court of tbis State, but as Judge Biggs was not sitting, and took no part wben tbe opinion and judgment were rendered herein by tbis court on tbe 21st day of June, 1898, reversing and remanding tbis cause, a majority of tbe judges of tbis court are of opinion tbat no ground for certifying tbis cause exists within tbe meaning of section 6 of tbe amendment to tbe Constitution of Missouri, limiting and defining tbe jurisdiction of tbis court.” After which tbe motion for rehearing was overruled.

Immediately on tbe refusal of tbe court to certify tbe case, as Judge Biggs bad requested, tbe relators by their counsel then present asked leave to file a motion to tbat effect, but tbe court refused their request, and then adjourned for tbe term. It is stated in tbe reply and, without looking into tbe evidence, for tbe purpose of tbis suit we will take it for true, tbat there was never any consultation on tbe merits of the case between Judge Biggs and tbe other two judges; tbat after the majority opinion was filed, and while tbe motion for rehearing was pending, Judge Biggs sent a written memorandum to Judge Bland in which be stated tbat be considered tbe majority opinion in conflict with tbe decision in Verdin v. St. Louis, and be was in favor of sustaining tbe motion for rehearing, but Judge Bland by similar means informed Judge Biggs tbat Judge Bond and himself bad previously talked tbe matter over and bad agreed to overrule the motion and tbat would be tbe order. Then Judge Biggs, without further interchange of views on the subject with the other two judges, or either of them, prepared bis dissenting opinion, which was delivered on July 5.

Tbe only question presented for our consideration by ■this record is, did Judge Biggs sit in tbat case ?

Judge Biggs was oil tlie bench when the case was argued, and submitted and taken under advisement; tbe case tben rested as mucb on bis conscience as tbat of tbe other judges; its assignment to another judge in no sense withdrew tbe responsibility from him; be counseled with tbe other members of tbe court on tbe wisdom of waiting for further light on tbe subject from this court; within a few days after tbe majority opinion was delivered, and during tbe same term, and while the motion for rehearing was pending, be communicated to the writer of tbe opinion bis views, and cited a decision of this court which be thought was being contravened, and expressed bis opinion tbat tbe motion for rehearing ought to be sustained. It appears from tbe return tbat Judges Bland and Bond, before tbe return of Judge Biggs, consulted on tbe motion for rehearing, and after due deliberation came to tbe conclusion tbat it ought to be overruled. But it by no means follows tbat because they bad agreed on tbe opinion in tbe first instance they would agree to overrule tbe motion for rehearing. A motion for a rehearing is a very serious stage of tbe case; it often saves tbe court from error and tbe party from wrong. Tbe case is pending for all there is in it, in tbe appellate court, until tbat motion is overruled. [State ex rel. v. Philips, Judge, 96 Mo. 570.] Now suppose Judges Bland and Bond bad become divided in opinion, one favoring granting and tbe other denying tbe motion, tben Judge Biggs’ vote would have accomplished an entire change in tbe case; yet bis vote was as valid when it stood alone for tbe rehearing, as it would have been if it bad been cast with tbe majority.

While tbe motion was pending, if Judge Biggs thought tbe decision was wrong it was bis duty as a judge to exert bis influence to correct'the error. It is not necessary tbat a judge of an appellate court should be in session with tbe other judges at every stage of the case in order to enable him to perforin any duty which bis mind and conscience dictate in reference to tbe case; and it is not necessary that he should take part in every stage before he can be considered as sitting in it.

Under the facts of this case, Judge Biggs is to be adjudged as having sat in it; was entitled to file his dissenting opinion, and, upon his statement that he deemed the majority opinion contrary to the decision he mentioned, that court ought to have certified and transferred the cause to this court in accordance with the requirement of section 6 of the amendment of 1884 of the Constitution.

The peremptory unit of mandamus is awarded.

All concur, except Judge Buegess, absent.  