Opposition Brief — Moffett v. Commerce Trust Co.

Supreme Court brief1946

Ask Donna

What actually matters in this document.

Text

bz fee

«thd TESEREZEE oy

FILA

JUL 19 1946

eae A

SUPREME COURT OF THE UNITE 4

OCTOBER TERM, 1946

No. 318

LOUISE McGREW MOFFETT axv LOUISE McGREW

MOFFETT as Execuraix or tue Estate or Tuomas 8.

Morrett, Deceasep,

on Appellants,

COMMERCE TRUST COMPANY, a Corporation, HELEN

WEEDE, B. C. HOWARD, ax» WILLIAM H. KOPP

APPEAL FROM THE SUPREME COURT OF THE STATE OF MISSOURI

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

Joun T. Harprna,

Davin A. Murpny,

* R. Carrer Tucker,

Joun Murpnry,

» Water A. Raymonp,

Counsel for Appellee,

Helen Weede;

Cuaries M. BuackMar,

y James E. Goopricn,

Huon M. Hiiier,

Evoeens E. Bowers,

Counsel for Appellee,

Commerce Trust Company ;

Ww. Dennis Busn,

Counsel for Appellee,

B. C. Howard;

Gusew A, Wispom,

Counsel for Appellee,

William H. Kopp.

ELEED THROUGH= POOR COPY

INDEX

Sussect Iwpex

Page

Appellees’ suggestion opposing jurisdiction... ... 1

ONIN nn CAC dries aikbls cdbd sce sence: 1

Foreword to Discussion—Appellants have failed

to show jurisdiction........................ 2

I. The contention that this Court ac-

quired jurisdiction by reason of the

alleged point that Section 948 R. S.

Missouri 1939 is violative of Section

10 Artice I of the Constitution of

the United States is so clearly

without foundation as to present

no substantial or colorable federal

question. The judgment rendered

herein in conformity to said section

was not upon the merits and is no

bar to the commencement of another

RE Ee a 6

II. There is no provision of the Constitu-

tion or Statutes of the United

States which gives the Appellants

the right to maintain jointly in the

courts of Missouri, the instant suit

for their alleged cause or causes

of action and no rights under the

Constitution or laws of the United

States were denied to Appellants

by the holding of the court that

there was a misjoinder of parties

en ae eee 22

III. Appellants’ claim that the demurrers

to the Fifth Amended Petition were

sustained without notice or hearing

is not sustained by the record... __. 30

IV. Appellants’ contention that the Mis-

souri Supreme Court erred in not

—6417

ii INDEX

Page

deciding the case on appeal under

the new Code of Civil Procedure al-

though the case was tried below

under the old code before the effec-

tive date of the new code is without

merit and raises no federal ques-

OD so es Messi te lawtas Aree 34

V. There was no error by Division I of

the Supreme Court of Missouri in

denying the application of Appel-

lants for transfer of the instant

cause to the Supreme Court of Mis-

souri en banc; Appellants could not

claim such transfer as a matter of

right ; and there was no violation of

the equal protection clause of Sec-

tion 1 of Amendment XIV to the

United States Constitution. __. 44

VI. The records show that “‘most if not

all’’ of the questions referred to by

the Missouri Supreme Court on

page 592 of its opinion in 193 8. W.

(2d) 588, and also many other ques-

tions raised by Appellants on this

appeal have been decided adversely

to Appellants by courts of compe-

tent jurisdiction in suits brought by

Appellants or in which they actively

participated, and that Appellants

have not only had their day in court

but their months and years 52

VII. Judicial Notice—(a) This court will

take judicial notice of its records in

former cases companion to and in-

ter-related with the instant case,

and growing out of transactions

pleaded in the instant case, where

this Court has denied certiorari on

such former cases. (b) The Su-

preme Court of Missouri in the in-

stant case was entitled to take judi-

ELEED THROUGH POOR COPY

cial notice of its own records in

former cases closely interwoven

with, companion to and interde-

pendent with the instant case and

to take judicial notice of the public

statutes and judicial decisions of

the State of Kansas pleaded in the

instant action. (c) The Circuit

Court of Jackson County, Missouri,

in the instant case was entitled to

take judicial notice of all prior pro-

ceedings of said Circuit Court and

of any divisoin thereof in the in-

stant case, all of the divisions

thereof constituting but a single

VIII. Appellants’ Assignment of Error

OE Eee a re 78

1X. In Appellants’ First Assignment of

Error (see also page 5, Appellants’

Jursidictional Statement it is

claimed that the Supreme Court of

Missouri, 193 S. W. (2d) 588, de-

nied Appellants their constitutional

rights by holding that ‘‘the petition

did not state a cause of action.’’

The opinion itself (1. c. 592) shows

ET PO oy TS ee 82

X. Comanche Case. Helen Moffett v.

T. 8S. Moffett, et al., 131 Kan. 546;

same, 283 U.8.826............:.. 91

XI. Jurisdiction is not vested in this

Court by reason of Appellants’

charge that Appellee instituted and

maintained fictitious suits in the

state courts alleged -to be pursuant

to an unlawful conspiracy... _.... 95

XII. Appellants are completely in error in

in the contention that there is a right

of action for conspiracy alone, inde-

iv INDEX

Page

pendent of the damage caused by

specific acts in furtherance of the

conspiracy, either under the Stat-

utes of the United States or of the

State of Missouri. The ‘‘mere force

of numbers’’ doctrine can have no

application in the instant case ... 98

XIII. Appelants’ charge of libel ....... 101

XIV. Appellants complain that the opinion

of the Supreme Court of Missouri,

193 S. W. (2d) 588, denied Appel-

lants their constitutional rights by

giving validity to the acts of those

we will hereafter denominate as de

facto judges. Appellants claim

that those judges were illegally ap-

pointed and their acts are void _. 106

XV. Possible repetition is regretted .... 108

Motion to Dismiss or Affirm...................... 109

In the ‘‘Suggestions’’ pages of printed records

in Missouri Supreme Court ar? indicated thus:

in the instant case (312); in ihe Howard Fee

Case, 345 Mo. 741; 137 S. W. (2d) 507,

SN hide daabevdedeldntar Ks, Wiss avewrciada 110

DI cae naititiin tks tte hd Zod hdd + * wo vwkas 110

Moffett v. Moffett, et al., 131 Kan. 582, 292 Pac.

REET ESS REITER Cee 58, 69, 86, 106

Grace Torrance Clark, et al. v. Helen Moffett,

et al. 136 Kan. 711, 18 Pac. (2d) 585... 72

Moffett et al. v. Robbins, 81, F (2d) 431,

16, 54, 55, 59, 60

Louise McGrew Moffett et al. v. R. O. Robbins,

Administrator, 14 Fed. Supp. 602........... 72

Specification of Errors contained in a Petition

for Writ of Certiorari to review the decision

of the Supreme Court of Kansas in the case

of Clark v. Moffett, 136 Kan. 711, filed in

United States Supreme Court on or about

June 23, 1933, and docketed therein as cause

Be Ri dkadey dat 110

ELEED THROUGH= POOR COPY

IN DEX v

Specification of Errors contained in a Petition

for Writ of Certiorari to review the decision

of the Tenth Circuit Court of Appeals in the

case of Louise McGrew Moffett v. R. O. Rob-

bins, Administrator, 81 F. (2d) 431, filed in

the United States Supreme Court on April 11,

1936, and docketed therein as cause No. 918... 110

Tasiz or Cases Crrep

Akins v. Hicks, 109 Mo. App. 96,838. W.75........ 23

Alaska Packers Association v. Industrial Acct. Com.,

eee | Ye le eee ee 9

A.,T. € 8. F. R. Co. v. Railroad Com., 283 U. S. 380,

OD Ue, ME S45 Pk eee unas ees oe veo ee ses 50

Amber v. Choteau, 107 U.S.586 ................... 87

Anderson National Bank v. Luckett, 321 U. 8. 233, 88

me F 4 FR Sa pe errr 10

Anson v. Tietze, 190 S. W. (2d) 193................ 40

Aspen Mfg. & Smelting Co. v. Billings, 150 U. S. 31,

gg kB PRS ERS ey ae eee eS 74

Aufderheide v. Ice € Fuel Co., 319 Mo. 337, 4 8. W.

ME Oy apc hee Sieh ees tet en share nib aes 09 49

Baucke v. Adams, 188 S. W. (2d) 355 .............. 100

Beardslee v. Morgner, 73 Mo. 22 .................. 8

Beattie Mfg. Co. v. Gerrardi, 2148S. W.189......... 90

Bell v. Hood, 90 Fed. Adv. sheets 758, 90 L. Ed. 758,

eG Ge Ib 0g Fore dntas Cibaks connte s+ 17, 27

Bennett v. Railway Co., 105 Mo. 642, 16 S. W. 947... 49

Bennett v. Southern Bank of Mexico, 61 Mo. App.

297

Oy Oi MR tas oi bas Vid Ge Beek acne oc a 75

Brady v. Daly, 175 U. 8S. 148, 44 L. Ed. 109......... 13

Brawner v. Irvin, 169 Fed. 964.................... 99

DG, TOG, ae ie es a oa bo deb Vacca emetic... 108

Case v. Smith, 215 Mo. App. 621, 257 S.W.148...... 78

Central Vermont Ry. Co. v. White, 238 U. 8. 507.... 3

Clark v. Andrews, 136 Kan. 123, 13 Pac. (2d) 294... 73

Clark v. Moffett, 136 Kan. 711, 18 Pac. (2d) 555,

16, 54, 55, 57, 61, 62, 63, 73, 86, 88, 106

vi INDEX

Page

Commonwealth v. Stasio, 8 N. E. (2d) 823.......... 108

Corbett v. Terminal Railroad Assn., 336 Mo. 972, 82

ee Bb liadbusadkocens thbend ¢ohvess es 14

Crawford v. Arends, 351 Mo. 1100, 176 S. W. (2d) 1.. 40

Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356... . 11

Dean v. State, 120 Fla. 60,162 So. 155.............. 12

DeBearn v. Safe Deposit & Trust Co., 233 U. 8. 24,

a ie ESL Us Ge oa Gekssdewvceeetesees 75

Deming v. Carlisle Packing Co., 226 U. 8. 102, 57 L.

i Mr SoC se ut fovea dvdk vend needs 15

Department of Banking v. Hedges, 136 Nebr. 382,

tf ON Ry eee ree Ty rr Py 12

Dobbins v. Gas Co., 182 Cal. 616, 189 Pac. 1073...... 12

Doyle v. Loring, 107 F. (24) 337. . Neti eies eee 42

pn OS rere 80

Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188. 25

Pe OY, re

Fadler v. Gabbert, 333 Mo. 851, 63S. W. (2d) 121.... 23,29

Fears v. Riley, 148 Mo. 49, 49 S. W. 836............ 77

Frigorifico Wilson De Law Argentina v. Wierton

Ne ek Oe I os cv vcetcrccodenecens 43

Fritzler v. Boatmen’ s Bank, 212 U. S. 364, 53 L. Ed.

Ne ere ee ee ee ee ls ey 74

Georgia v. Pa. R. Co., 324 U.S. 439, 89 L. Ed. 1051... 27

Gordon v. Burris, 125 Mo. 39,28S.W.191.......... 18

Gorman v. Washington University, 316 U. 8S. 98, 62

en I oe i ig cds cae hws cee cs

Guhlman v. Growthe, 346 Mo. 427, 142 S. W. (2d) 1.. 96

Hallinger v. Davis, 146 U. 8. 314, 36 L. Ed. 986, 13

TIS sh be oi idan. doe Kone 0 RO hate ores 21

Howard Fee Case, 345 Mo. 741, 137 S. W. (2d) 507,

54, 66, 73, 80

Huddleston v. Dwyer, 322 U.S. 232, 64 S. Ct. 1015. 35

Hunter Co. v. McHugh, 320 U.S. 222, 64 Sup. Ct. 19. 35

Huntington v. Attrill, 146 U.S. 657, 36 L. Ed. 1123... 13

Johnson v. Drew, 171 U.S. 93, 43 L. Ed. 88......... 21

Githcart v. Ins. Co., 88 F. (2d) 410................. 85

Knorp v. Thompson, 352 Mo. 44, 175 8. W. (2d) 889. . 54,76

Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360,

Be rs ee bre ce SPAN: thoes Shcietes> 96

ELEED THROUGH= POOR COPY

_——

INDEX vii

Page

Lawrence v. State Tax Commission, 286 U. 8. 276,

76 L. Ed. 1102, 52 Sup. Ct. 556, 87 A. L. R. 374..... 9

L. @N. Ry. Co. v. Woodson, 134 U. 8. 614, 33 L. Ed.

>, SPR iak ce ctrl beh CONE D cay gate ates 21

Life & Casualty Ins. Co. v. McCray, 291 U. 8. 566,

EEE os naka bine s bbb d Bite wyved de eaithe «et 10

Lindsay v. Evans, 176 8. W. (2d) 390.............. 95

Lober v. Kansas City, 339 Mo. 1087, 74 S. W. (2d)

i Crt Re SN, ow wed’ sins VO-00.¥e ie «igh 38

Losch v. Pickett, 36 Kans. 222..................... 87

Manning, In re, 45 N. W. 26................--5.-5. 108

Memphis Natural Gas Co, v. Beeler, 315 U. 8. 649, 62

I, OE nb. vn w cv Sr aebegns's Mec vergemet e's 4

Midland Realty Co. v. Kansas City Power & Light

Co., 300 U. S. 109, 57 Sup. Ct. 345................ 37

Missouri ex rel. v. Public Service Com., 273 U. 8. 126,

NRE LES ORIEN MPa PE Pa 51

Missouri ex rel. Taylor, 266 U. S. 200, 69 L. Ed. 247,

45 Sup. Ct. 47, 42 A. L. R. 1232.................. 24

Missouri Pac. Railroad Co. v. Norwood, 283 U. S. 249,

I a ahs Cok Cals we Ok Dit’ e+ Ke « 9

Mills Estate, In re, 162 S. W. (2d) 807.............. 81

Minneapolis € St. Lowis R. Co. v. Bombolis, 241 U.S.

211, 60 L. Ed. 961, 36 Sup. Ct. 595 Ann. Cas. 1916

is «ees ota ed ec CE AT AA DOS * BRET te vie 24

Mitchell v. Greenough, 100 F. (2d) 184............. 99

Moffett v. Clark, 131 Kans. 582 ................ . 54, 57, 73

Moffett v. Commerce Trust Co., 193 S. W. (2d) 588,

33, 38, 41, 89

Moffett v. Moffett, 131 Kan. 582, 292 Pac. 947, 77

SN a ae . 58, 69, 86, 106

Moffett v. Moffett, 131 Kan. 546, 292 Pac. 942....... 16, 93

Moffett v. Robbins, 298 U. 8. 675, 80 L. Ed. 1397, 56

OS . 6 See ve i a eee 16

Moffett v. Robbins, 81 F. (2d) 431....... . 16, 54, 55, 59, 60

Moffett v. Robbins, 14 Fed. Supp. 602......... 54, 59, 67, 86

New Orleans Waterworks Co. v. Louisiana, 185 U. S.

viii INDEK

Niehaus v. Jos. Greenspon’s Son Pipe Corp., 237 Mo.

r 6h Sl yh A Ol

Norton v. Shelby, 118 U.8.426...................

O’Sullivan v. Feliz, 233 U. 8. 318, 58 L. Ed. 980... ...

Parker v. McLain, 937 U. S. 469, 59 L. Ed. 1051......

Pele v. Bollinger, 180 Mo. 252.....................

Picking v. Pa. R. Co., 151 F. (2d) 240..............

Pitcairn v. American Refrigerator Transit Co., 101

RR rik er ee Pe ee

Plymouth Motor Corp, In re, 46 F. (2d) 212........

Radio Station WOW v. Johnson, 326 U. S. 120, 65

Sup. Ct. 1475..... kien jax bandas racers ty enews

Reppetto v. Walton, 313 Mo. 182, 281 S. W. 411.

Rockwood v. Crown Laundry Co., 352 Mo. 561, ‘178

gs BBs Fe Se 24,

Roe v. Kansas ex rel. Smith, 278 U. S. 191, 73 L.

ee eae fee ee Fete a tdaacectatcasat al

Sabin v. Home Owners Loan Corporation, 151 F.

CT Eggi a ie SP Pine Pel ere oe

Sabol v. St. Lowis Cooperage Co., 318. W. (2d) 1041.

Scheufler v. Mfg. Lumb. Underwriters, 349 Mo. 855,

SE re ee I ha ae chk onksasscdne teas ste.

Scott v. Alton Bank & Trust Co., 1758. W.920. _...

Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 8S. W.

Bt SR eR Ra Be sasese Ff

PP ee sti c's rel es Dede cies 100

Shapleigh v. Mier, 299 U. S. 468, 81 L. Ed. 356, ‘57

Sup. Ct. 261 . 71

Sidway v. Land é ‘Live Stock Co., 197 Mo. 359, 94

SP TES ce va dc dese e sce 8

Simpson v. Stoddard, 173 Mo. ees 41

Southwestern Bell Telephone Co. v. Oklahoma, 303

De ey es Gc. hs a ieee ES 5

State v. Bacon, Gi Atl. G63........................ 100

State v. Dalton, 134 Mo. App.517.................. 100

State v. Douglas, 50 Mo. 586...................... 107

State v. Duestrow, 137 Mo. 44, 38 S. W. 544, 39 S. W.

NS Rae eh ate ae ard ous bene s cond ovean 45

Bais Gs Tee Gs Us coe li cw ccececccccvess 107

State ex rel. v. Horner, 187 S. W. (2d) 976.......... 87

ELEED THROUGH= POOR COPY

Page

State ex rel. v. Landwehr, 332 Mo. 622, 60 8S. W.

AG sx eins tye nancies oe biein a ainin > 00: 77

State ex rel. Burns v. Woolfolk, 303 Mo. 589........ 81

Thomson v. Butler, 136 F. (2d) 644................ 97

United States v. Pink, 315 U. 8S. 203, 86 L. Ed. 796,

GR, WE oc owewadndewnnvuris s 4uGe at . 80, 52, 72

Waters-Pierce Oil Co. v. Texas, 212 U. 8. 86, 53 L. Ed. :

a a ae ot 1

Webb v. Bidwell, 15 Minn. 479 .................... 12

Weber v. Strobel, 225 S. W. 925................... 96

Weitzman v. Weitzman, 156 8. W. (2d) 908......... 84

Wells v. Davis, 303 Mo. 388....................... 23

Wilson Co. v. Inst. Co., 300 Mo. 1, 254 8. W. 266... .. 19

Wright v. Central National Bank, 37 F. (2d) 234... . 15

Yazoo, etc., R. Co. v. Mullins, 249 U. 8. 351, 63 L.

ee had Seen ee eae CE heed ss) t inti necne st 50

Zombro v. Moffett,448. W. (2d) 149............... 64

Statutes Crrep

Constitution of the United States:

Fourtenth Amendment ...................... 19, 22

Fair Labor Standard Act of 1938, 29 U. 8. C. 201-219. 25, 26

Federal Rules of Civil Procedure, Rule 86..........

Missouri Cede of Civil Procedure, Sec.3........... 48

Missouri Constitution of 1875:

Secs. 3 and 5 of 1884 Amendments............. 47, 48

pO tT eee 49

Missouri Constitution, Sec. 4 of 1890 Amendment. __. 47

Missouri Constitution of 1945, Sec. 3 of Article V....

Mo. Rev. St. 1939:

CE ss, cna cio ces hued tro isieline. 6, 19, 79

Section 958 54

I Ss Tio oh b babs Soe tee ae 99

x INDEX

Page

U.S. Rev. St. Sec. 1010 (28 U.S.C. 878............. 14

U. 8. Rev. St.:

Section 1979 (8 U. S. C. 43).............08. 23, 24, 98

Section 1080 (8 U.S. C. 47)............... . 23, 24, 98

Section 1981 (8 U.S. C. 48)..............4.. 23, 24, 98

cece tote wu sedMe

Re es oe Bc estesadddel 99

ES eee cae ne care eerers 99

28 U.S. C. 344 (Judicial Code, Sec. 237)............ 50, 97

ED ova. > os URS ote ab ecie ohr ba bind os 14

Orner AuTuorities Crrep

11 Amer. Jur. Prud. ‘‘Constitutional Law’’ Sec. 83,

Llc is hace bode cae s st scareds sien 10

ey IG ys Sos oil's ae¥ 0d as 05.56 50 00 ecane 108

Se Es

ELEED THROUGH= POOR COPY

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 318

LOUISE McGREW MOFFETT ayv LOUISE McGREW

MOFFETT as Execuraemx or tue Estate or Tuomas S.

Morrett, Decgasep,

- Appellants,

COMMERCE TRUST COMPANY, a Corporation, HELEN

WEEDE, B. C. HOWARD, ann WILLIAM H. KOPP,

Appellees

APPELLEES’ SUGGESTIONS OPPOSING JURISDIO-

TION, AND MOTION TO DISMISS APPEAL OR

AFFIRM JUDGMENT

Statement

The Appellees, believing that the matters set forth below

will demonstrate the lack of substance in the questions

raised by this appeal, file this, their statement in opposition

to Appellants’ statement as to jurisdiction. Appellees in-

clude herein and at the end hereof their motion to dismiss

the appeal, or, in the alternative, to affirm the judgment

a —

of the Supreme Court of Missouri, on the ground that the

questions raised on behalf of Appellants are so unsubstan-

tial as not to sustain the jurisdiction of this Court and not

to require further argument. Appellees assert that the

unsubstantial character of the grounds stated by Appel-

lants is so apparent on the face of the record as to defeat

the jurisdiction of this Court and to warrant summary

disposal of the appeal by the Court at this stage of the

proceeding. The matters here relied upon by the Ap.

pellees are more particularly stated in the following parts

of this statement.

Foreword to Discussion

The Appellees have heretofore been and now are sepa-

rately represented by their respective counsel. However,

to avoid unnecessary repetition and conserve the time and

labor of this Court, Appellees have joined in the suggestions

and motion hereinafter set out. We regret the length of

these suggestions but feel compelled to discuss the question

involved at some length because of the long, involved and

confusing Assignments of Error and Jurisdictional State-

ment filed by Appellants. Appellants’ Assignments of Er-

ror cover some six and one-half crowded pages of type-

writing. Their Jurisdictional Statement covers more than

thirty-three crowded typewritten pages, exclusive of

exhibits.

On Page 46 of the Jurisdictional Statement, there ap-

pears the following:

‘*Appellants adopt and make Motion for rehearing

and to Transfer to the Court en banc in the state

supreme court, and Assignments of Error herein filed,

a part hereof, as fully as if set forth as a part of this

jurisdictional statement.’’

Examination of this motion discloses that it consists of

twenty-four pages, and, further, that most of the contentions

ELEED THROUGH POOR COPY

therein were relative to non-Federal questions. We respect-

fully submit in passing that it is violative of at least the

spirit of the Rules of this Court in proceedings of this char-

acter for the Appellants to incorporate in a jurisdictional

statement by reference a lengthy document of this character.

We feel that the jurisdictional statement should not go be-

yond the confines of the Assignments of Error, which are

a part of the appeal papers to this Court. We believe

Appellants’ Assignments and Jurisdictional Statement

merit the condemnation given plaintiff in error’s assign-

ments in the case of Central Vermont Railway Co. v. White,

Administratriz, 238 U. 8. 507, where the Court said:

«* * © The case was brought here on a record

containing so many assignments, covering 18 printed

pages, as to make it proper to repeat the ruling in

Phillips v. Seymour, 91 U. 8. 648, that the ‘practice of

filing a large number of assignments cannot be ap-

proved. It perverts the purpose sought to be subserved

by the rule requiring any assignments.’ ‘It points

to nothing and thwarts the purpose of the rule’ (Chi-

cago, Great Western Ry. Co, v. McDonough, 161 Fed.

Rep. 659) which was intended to present to the court a

clear and concise statement of material points on which

the plaintiff in error intends to rely.’’

Appellants here might just as well point to the sky as to

their assignments of error and jurisdictional statement.

The one would be about as indefinite as the other.

This Court in the Central Vermont Railway case, supra,

said further (238 U. 8. 1. ¢. 509):

‘‘Some of the assignments in the present case relate

to matters of pleading; others to the admissibility of

evidence, to the sufficiency of exceptions, and to various

rulings of the trial court which involved no construction

of the Employers Liability Act and which, therefore,

cannot be considered on writ of error from a state

court. Seaboard Air Line v. Duvall, 225 U. 8. 477, 487.”’

That case was an appeal from a Vermont judgment. What

is there said is applicable to most of the matters complained

of here, to-wit : they are matters of State practice, involve no

Federal question, and a State court judgment thereon is

final and conclusive.

Preliminary to our discussion of the jurisdiction ques-

tions involved, we desire to call attention to a few funda-

mental rules. Appellants are here invoking the appellate

jurisdiction of this Court to review the judgment of the

Missouri Supreme Court. The burden is therefore upon

appellants to demonstrate this Court has jurisdiction. In

the case of Gorman v. Washington University, 316 U. 8.

98, 62 S. Ct. Rep. 962, this Court said: (1. ¢. 964)

‘Upon application to this Court for review of the

judgment of a state court it is the petitioner’s burden

to show affirmatively that we have jurisdiction. Mem-

phis Natural Gas Co. v. Beeler, 315 U. S. 649, 62 S. Ct.

857, 86 L. Ed. —.”’

The opinion in the case cited in the quotation above,

Memphis Natural Gas Company v. Beeler, 315 U. 8. 649, 62

S. Ct. 57, states: (1. ¢. 859)

‘*The case comes here by appeal from a judgment of

the Supreme Court of Tennessee, which sustained the

tax and reversed a decree of the Tennessee chancery

court enjoining its coliection. * * * The Judicial

Code was intended to restrict our obligatory appellate

jurisdiction to a narrow class of cases, and to fore-

close an appeal as of right whenever the prescribed

conditions have not been rigorously fulfilled.’’

To discharge the burden upon them and demonstrate this

Court has jurisdiction herein, Appellants must prove that

there was a substantial Federal question involved upon

which the State Court decision necessarily rests. The re-

quirements in this connection are well stated by this Court

cr cen THROUGH=— POOR COPY

in the case of Southwestern Bell Telephone Company v.

State of Oklahoma, 303 U. 8. 206, 58 S. Ct. Rep. 528, as

follows: (1. ¢. 530)

‘‘We have repeatedly held that it is essential to the

jurisdiction of this Court in reviewing a decision of a

court of a State that it must appear affirmatively from

the record, not only that a federal question was pre-

sented for decision to the highest court of the State

having jurisdiction, but that its decision of the federal

question was necessary to the determination of the

cause; that the federal question was actually decided

or that the judgment as rendered could not have been

given without deciding it. DeSaussure v. Gaillard,

127 U. S. 216, 234, 8 S. Ct. 1053, 32 L. Ed. 125; John-

son v. Risk, 137 U. S. 300, 306, 307, 11 S. Ct. 111, 34

L. Ed. 683; Wood Moving & Reaping Machine Co. v.

Skinner, 139 U. S. 293, 295, 297, 11 S. Ct. 528, 35 L. Ed.

193; Whitney v. California, 274 U. 8S. 357, 360, 361,

47 S. Ct. 641, 642, 643, 71 L. Ed. 1095; Lynch v. New

York, 293, U. S. 52, 54, 55 8. Ct. 16, 17, 79 L. Ed. 191.”’

In the case of Radio Station WOW v. Johnson, 326 U. S.

120, 65 S. Ct. Rep. 1475, this Court stated the rule as follows:

(1. ¢. 1480)

‘‘Here the Nebraska Supreme Court held that the

federal question had dropped out as a matter of plead-

ing and also denied its merits. This brings the situa-

tion clearly within the settled rule whereby this Court

will not review a State court decision resting on an

adequate and independent non-federal ground even

though the State court may have also summoned to its

support an erroneous view of federal law. ‘Where

the judgment of the state court rests on two grounds,

one involving a federal question and the other not

question is sufficient in itself to sustain it, this Court

will not take jurisdiction.’ Lynch v. New York, 293

U.S. 52, 54, 55, 55 S. Ct. 16, 17, 79 L. Ed. 191.”’

| a

We are confident Appellants have failed to meet the above

tests and discharge their burden to prove jurisdiction in

this Court by reason of a substantial Federal question

actually passed upon and necessary to the decision of the

State court. We shall now attempt to demonstrate that

Appellants have failed to discharge this burden and be-

cause thereof, this appeal should be dismissed.

The contention that this Court acquired jurisdiction by

reason of the alleged point that Section 948 R. 8. Missouri,

1939, is violative of Section 10, Article I of the Constitution

of the United States is so clearly without foundation as to

present no substantial or colorable Federal question. The

judgment rendered herein in conformity to said section was

not upon the merits and is no bar to the commencement of

ancther action. (Appellants assignment of errors numbers

14, 15 and 18)

By reference to the opinion of the Supreme Court of Mis-

souri in the instant case, 193 S. W. 2 588, it is readily ap-

parent that the only Federal question which the Supreme

Court of Missouri had occasion to pass upon, and did pass

upon, in arriving at its decision that the judgment of the

court below was right in sustaining the demurrers and dis-

missing the petitions for misjoinder of parties plaintiff (a

procedural question) was the contention that Section 948

R. S. Mo. 1939 was in effect a bill of pains and , enalties

and a violation of the provisions of Article I, Section 10,

of the Federal Constitution which prohibits a State from

passing a bill of attainder.

Section 948 R. 8S. Mo. 1939 is as follows:

**Sec. 948. Proceedings if third pleading is insuffi-

cient,

ELEED THROUGH= POOR COPY

—

“If a third petition, answer or reply be filed and ad-

judged insufficient as above, or the whole or some part

thereof be stricken out, the party filing such pleading

shall pay treble costs; and no further petition, answer

or reply shall be filed, but judgment shall be rendered.

R. 8. 1929, #796.”’

It is the third of a series of correlated sections which were

first enacted by the State of Missouri in 1825, the first of

which, section 946 id., provides that when a petition, answer

or reply shall be adjudged insufficient in whole or in part

upon demurrer or the whole or some part thereof stricken

out on motion, the party may file a further like pleading

within such time as the court shall direct; and in default

thereof, the court shall proceed with the cause as if no

such original pleading had been filed.

The second section, 947 id., provides that if such a second

pleading be filed and adjudged insufficient or stricken in

whole or in part, the party filing the same shall pay double

costs, and file a like pleading instanter ; or in default thereof,

the court shall proceed as if no second pleading had been

filed. It will be noted that Section 948 id., simply provides

for treble costs, forbids the filing of any further like plead-

ing and commands that judgment shall be rendered.

Section 948 id., thus attacked not only has been upon the

statute books of the State of Missouri for one hundred

twenty years, but intensive research has failed to disclose

any previous attack upon its validity under either the Fed-

eral or State constitutions. On the contrary, it has been

construed, applied and enforced universally by the trial

courts of Missouri, with the approval of the Supreme Court

and other appellate courts of that State when exercised in

accordance with their interpretation of its meaning and

effect.

The provisions of Section 948 id., are wise, salutary and

remedial. The reasons which in the opinion of the appellate

courts of Missouri, influenced the Legislature to enact that

section have been cogently set forth in the Comes cited

below, among others.

In Beardslee v. Morgner, 73 Mo. 22, the heskeai Court

of Missouri, in a decision rendered in the year 1880, said

with reference to the section in question:

‘*The legislature, no doubt, thought a pleader who

could not draw a good petition in three trials ought to

go out of court, and not detain his adversary any longer

by his blundering dilatoriness. Whatever they may

have thought, this is what they commanded, and that

command we are not at liberty to ignore.’’

In Sidway v. Land @ Live Stock Co., 197 Mo. 359, |. «.

371-373, 94 S. W. 855, a decision rendered in the year

1906, the court elaborately construes and applies the mean-

ing and intent of this section thus:

‘‘The lawmakers doubtless thought that some time

should be fixed in which efforts to litigate should cease,

and they therefore provided that, when a third petition

was filed and adjudged insufficient, it was the duty of

the court to end such efforts at litigation, and render

judgment providing that the party filing such petition

should pay treble costs, and prohibiting the filing of

any further petitions.’’ (But such judgment does not

bar another action. This is briefed infra.)

Bennett v. Southern Bank of Mexico, 61 Mo. App. 297

was decided by the Kansas City Court of Appeals, in an

able opinion which has been cited with approval by the

Supreme Court of Missouri. The Court of Appeals in its

opinion on rehearing, said of the section in question:

‘*The offending party is punished for the negligent or

unskillful manner of drafting his pleading.’’

The foregoing, together with other similar opinions of

the Missouri appellate courts are well summarized in the

ELEED THROUGH= POOR COPY

opinion in the instant case (193 S. W. 2d 588, 1. ¢. 592)

wherein the court says of Section 948 id.:

“This statute, until the effective date of our new

Code, was in force for one hundred twenty years. It

has frequently been construed by this and other courts

and, so far as we know, its constitutionality has never

been assailed before. * * ° It applies only to civil

procedure, inflicts no penalty without a hearing, au-

thorizes neither fine nor imprisonment, but only a

money judgment for unreasonably consuming the time

of courts and litigants and causing needless expense

by filing defective petitions. Its constitutionality is

presumed and appellants have offered nothing to rebut

the presumption.”’

The presumption of constitutionality which attaches to

every State statute unquestionably attaches in this case.

Alaska Packers Association v. Industrial Acci. Com., 294

U.S. 532 1. e. 543; 79 L. Ed. 1044, 1. c. 1049. And the burden

rests upon the appellants to overcome that presumption

and to demonstrate plainly any asserted invalidity. Mis-

souri Pac. Railroad Co. v. Norwood, 283 U. 8. 249, 1. «.

254, 255, 75 L. Ed. 1016, wherein this Court said:

“The state laws are presumed valid. * * ° The

burden is on <he plaintiff by candid and direct allega-

tions to set forth in its complaint facts sufficient plainly

to show the asserted invalidity. Aetna Ins. Co. v. Hyde,

275 U. S. 440, 447, 72 L. Ed. 357, 364, 48 S. Ct. 174, and

cases there cited. New Orleans Pub. Service v. New

Orleans, 281 U. S. 682, 686, 74 L. Ed. 1115, 1118, 50

S. Ct. 449; Beaumont, 8. L. & W. R. Co. v. United States,

282 U. S. 74, 88, ante, 221, 51 S. Ct. 1.”’

Appellants have the burden of overcoming the presump-

tion of facts supporting constitutionality, which attaches to

all State legislative acts. Lawrence v. State Taw Commis-

sion, 286 U. S. 276, 76 L. Ed. 1102, 52 8. Ct. 556, 87 A. L. R.

374.

Section 948 R. S. Mo. 1939 has stood unchallenged as to

constitutionality upon the statute books of the State of Mis.

souri for one hundred twenty years. The presumption of

validity which applies to legislation generally is fortified

by acquiescence through a number of years. 11 Amer. Jur.

Prud. ‘‘Constitutional Law’’, Sec. 83, page 705.

With respect to the constitutionality of giving of notice

of proceedings affecting property within the county by

posting on the Court House door which had been authorized

by statutes of the State of Kentucky, as to various subjects

and at various times since 1796, the late Chief Justice Stone,

speaking for this Court, said in Anderson National Bank vy.

Luckett, 321 U. 8. 233, 88 L. Ed. 692, 151 A. L. R. 824, that:

‘*The fact that a procedure is so old as to have be-

come customary and well known in the community is of

great weight in determining whether it conforms to

due process, for ‘Not lightly vacated is the verdict of

quiescent years.’ (citing cases)’’

In Life & Casualty Ins. Co. v. McCray, 291 U. S. 566, 7%

L. Ed. 987, there was a challenge to the constitutionality of

a statute of the State of Arkansas by which an insurance

company failing to pay a loss within the time specified in

the policy, after demand made therefor, was made liable

to the policy holder in addition to the amount of the loss,

for twelve (12) per cent damages thereon and reasonable

attorneys fee. This Court, speaking through Mr. Justice

Cardozo, refers to the act in question as a sample of a

type of statutes adopted in other States, referring par-

ticularly to the similar Texas Statutes first enacted in

1879 and upheld by this Court. The opinion then proceeds:

‘*During the half century and more in which the act

has been in force, no one, it seems, has protested to any

court that the percentage is immoderate. The same

statute came before us again in Iowa L. Ins. Co. 9,

ELEED THROUGH= POOR COPY

—

Lewis, supra, (187 U. S. 355, 47 L. ed. 213, 23 8. Ct.

126). We renewed our approval, and said of our earlier

opinion (Fidelity Mut. Life Asso. v. Mettler): ‘We

ae ore entirely satisfied with the case and its

reasoning.’ p. 355. Cf. Farmers’ & M. Ins. Co. v.

Dobney, supra (189 U. S. 305, 47 L. ed. 826, 23 S. Ct.

565). The presumption of validity which applies to

legislation generally is fortified by acquiescence con-

tinued through the years. Corn Exch. Bank v. Coler,

980 U. §. 218, 74 L. ed. 378, 50 S. Ct. 94; Ownbey v.

Morgan, 256 U. S. 94, 65 L. Ed. 837, 41 S. Ct. 433, 17

A. L. R. 873.”"

The presumption of the constitutionality of Section 948

R. S. Mo. 1939 is fortified by the acquiescence of the bench,

the bar and the public in its validity throughout one hun-

dred twenty years. That presumption becomes a cer-

tainty when we test the challenged sections by the classic

definition of a bill of pains and penalties, as formulated by

this Court in Cummings v. Missouri, 4 Wall. 277, 1. ¢. 323,

18 L. Ed. 356 1. c. 363, wherein it is held:

‘‘A bill of attainder is a legislative act, which in-

flicts punishment without a judicial trial.

“If the punishment be less than death, the act is

termed a bill of pains and penalties. Within the mean-

ing of the Constitution, bills of attainder include bills

of pains and penalties. In these cases the legislative

body, in addition to its legitimate functions, exercise

the powers and office of judge; it assumes, in the

language of the textbooks, judicial magistracy ; it pro-

nounces upon the guilt of the party, without any of

the forms or safeguards of trial; it determines the

sufficiency of the proofs produced, whether conform-

able to the rules of evidence or otherwise; and it fixes

the degree of punishment in accordance with its own

notions of the enormity of the offense.’’

Section 948 id. does not authorize either fine or imprison-

ment, but only a civil penalty imposed not for the vindica-

tion of public authority but as a compensation to the in.

jured party, and this only after the third pleading be

‘adjudged insufficient’. The word ‘‘adjudged’’ means

judicial determination of fact and entry of judgment.

Department of Banking v. Hedges, 136 Nebr. 382, 286

N. W. 277. It means a judgment entered by a court of

competent jurisdiction. Webb v. Bidwell, 15 Minn. 479,

484; Dobbins v. Gas Co., 182 Cal. 616, 189 Pac. 1073, 1082;

Dean v. State, 120 Fla. 60, 162 So. 155. As stated at the

beginning of this point, sections 946, 947 and 948 R. S. Mo.

1939 dealing with the first, second and third pleadings in

each instance provide that before the consequences speci-

fied in the particular section shall be adjudged, the pleading

shall have been adjudged insufficient. Consequently, the

command of Section 948 id., that no further pleading shall

be filed but judgment shall be rendered, can only apply

when each of the three pleadings in question shall have been

already determined to be insufficient by the judgment of

the court.

This Court has repeatedly recognized and applied the

distinction between penalties which are imposed as a pun-

ishment for crime and those which are per se civil in nature,

affording only a remuneration to a private party for in-

jury sustained in course of litigation. In Life & Cas. Ins.

Co. v. McCray, supra, with reference to recovery of percent-

age damages and attorneys fee, for delayed payment of in-

surance losses, Mr. Justice Cardozo said for this Court

that :

‘** *Penalty’ is a term of varying and uncertain mean-

ing. There are penalties recoverable in vindication of

the public justice of the state. There are other penal-

ties designed as reparation to sufferers from wrongs.

Huntington v. Attrill, 146 U. S. 657, 668, 36 L. Ed. 1123,

1127, 13 S. Ct. 224; Brady v. Daly, 175 U. S. 148, 154,

157, 44 L. ed. 109, 112, 113, 20 S. Ct. 62; St. Louis,

ELEED THROUGH= POOR COPY

M. & S. R. Co. v. Williams, 251 U. 8. 63, 66, 64 L. ed.

38, 140, 40 S. Ct. 71; Loucks v. Standard Oil Co., 224

20 N.E.198. * * ° the penalty may

more than the fair price of the adventure. St.

R. Co. v. Williams, supra, (251

40 S. Ct. 71). In that event,

who have tried and lost.’’ (291 U. 8. 1. ¢. 574, 575,

78 L. ed. L. ¢. 992.)

In Brady v. Daly, 175 U. 8. 148 1. ¢. 157, 44 L. Ed. 109,

1. ¢. 113, this Court said in discussing the nature of an action

at law to recover damages for infringement of copyright

under U. S. R. N. Statutes Section 4966, that:

‘« Although punishment, in a certain and very limited

sense, may be the result of the statute before us so far

as the wrongdoer is concerned, yet we think it clear

such is not its chief purpose, which is the award of

damages to the party who had sustained them, and the

minimum amount appears to us to have been fixed

because of the inherent difficulty of always proving

by satisfactory evidence what the amount is which has

been actually sustained.’’

And in Huntington v. Attrill, 146 U. 8. 657, |. ¢. 667, 36

L. Ed. 1123, 1. ¢. 1127, this Court held:

‘In the municipal law of England and America, the

words ‘penal’ and ‘penalty’ have been used in various

senses. Strictly and primarily, they denote punish-

ment, whether corporal or pecuniary, imposed and en-

forced by the State, for a crime or offense against its

laws. United States v. Reisinger, 128 U. S. 398, 402

(32: 480, 481); United States v. Chouteau, 102 U. S.

603, 611 (26: 246, 249). But they are also commonly

used as including any extraordinary liability to which

the law subjects a wrongdoer in favor of the person

wronged, not limited to the damages suffered. * * °

“Statutes giving a private action against the wrong-

doer are sometimes spoken of as penal in their nature,

—

but in such cases it has been pointed out that neither

the liability imposed nor the remedy given is strictly

penal. *’

Appellants have presented nothing to sustain their con-

tention that Section 948 id., is a bill of pains and penalties,

In the opinion in the instant case the Supreme Court of

Missouri said (193 S. W. 2 588 1. c. 592) of this section:

‘*Its constitutionality is presumed and appellants

have offered nothing to rebut the presumption’’.

In their jurisdictional statement to this Court, and par-

ticularly in ‘‘ A. The Federal Questions Involved Herein are

Substantial’’ thereof, they submit nothing to rebut the pre-

sumption of constitutionality of that section, or in support

of their contention of unconstitutionality made under point

14 of their assignment of error.

With respect to the claimed aspect of Section 948 id., as an

alleged bill of pains and penalties a noteworthy parallel

is found in Section 1010 R. 8S. Title 28 U. S. C., Section

878, reading as follows:

‘*878. Damages and costs on affirmance. Where,

upon a writ of error, judgment is affirmed in the Su-

preme Court or a circuit court of appeals, the court

shall adjudge to the respondents in error just damages

for his delay, and single or double costs, at its discre-

tion.

This section had its origin in the Judiciary Act of 1789.

(Historical note to Sec. 878 Title 28 U. 8S. C. A.) This

section gives authority to award damages for delay where

in form, there is no judgment of affirmance but only an

order for the dismissal of a writ of error to a State court

(or an appeal therefrom, since enactment of 45 Stat. 54 See.

861-a U.S. C. substituting appeal for writ of error) because

of the unsubstantial and frivolous character of the as-

ELEED THROUGH= POOR COPY

serted Federa! writ. Deming v. Carlisle Packing Co., 226

U. S. 102, 57 L. Ed. 140, 33 8. Ct. 80.

In Roe v. Kansa: ex rel. Smith, 278 U. 8. 191, 1. ¢. 193,

73 L. Bd. 259, L. ¢. 261, with reference to the above quoted

statute this Court held:

‘‘This writ of error to the supreme court of Kansas

must be dismissed. The alleged grounds therefor are

so lacking in substance that they may be properly

designated as frivolous.

‘In Slaker v. O’Connor (No. 61) (278 U. S. 188,

ante, 258, 49 Sup. Ct. Rep. 158), we have referred to

the statutes and rule which give us authority to impose

penalties and costs where causes are brought here upon

frivolous appeals or writs of error. The alleged

ground for the present writ is without substance, and

the circumstances justify the imposition of a penalty

upon the party at fault.

‘‘The writ of error will be dismissed and a penalty

of $200 payable to the defendants in error, together

with all costs, will be taxed against the plaintiff in

error,’’

And it is worthy of note that in the last cited case this

Court declined to hear counsel for the defendants in error,

and the inference is that such action was by reason of the

unsubstantial grounds asserted in support of the claimed

Federal jurisdiction.

In Wright v. Central National Bank, 37 Fed. 2 234, cer-

tiorari denied 281 U. S. 755, 74 L. Ed. 1165, 50 S. Ct. 409,

the defendants in an action at law had previously defended

the action against them and appealed from the resulting

judgment, which was affirmed. The reported case was an

appeal from the judgment of the United States District

Court dismissing an action in equity to enjoin enforcement

—

of the judgment previously recovered at law. The Cir.

cuit Court of Appeals, in dismissing the appeal, held:

“The defendants in the law action had full oppor.

tunity to defend. They answered and did defend in

that case and appealed from the judgment against

them, which was affirmed. This appeal is wholly witb.

73 L. Ed. 258; Roe v. Kansas ex rel Smith, Atty. Gen.,

278 U. 8. 191, 49 S. Ct. 160, 73 L. ed. 259.”

It is not amiss here to remind the court that the appel-

lants herein, after following the same course as did the ap-

pellants in Wright v. Central National Bank, supra, after

this Court in Moffett v. Robbins, 298 U. 8S. 675, 80 L Ed.

1397, 56 S. Ct. 940, had denied certiorari to review the deci-

sion of the Circuit Court of Appeals in Moffett v. Robbins,

81 Fed. 2 431, proceeded to bring the present action for

damages in the Circuit Court of Jackson County, Missouri.

We believe that this litigation is practically unparalleled

in the history of American jurisprudence. In addition to

the fact that this Court denied certiorari to review the deci-

sion of the Circuit Court of Appeals against the appellants

herein and therein on the suit to enjoin the judgments

in the Kansas State Court, this Court previously had denied

certiorari to review the decision of the Supreme Court of

Kansas in Moffett v. Moffett, 131 Kan. 582, 292 Pac. 947,

77 A. L. R. 294, Certiorari denied 283 U. S. 827, 75 L. Ed.

1440, and this Court likewise had denied certiorari to re-

view the decision of the Supreme Court of Kansas in Clark

v. Moffett, 136 Kan. 711, 18 Pac. 2 555, certiorari denied

290 U. S. 642, 78 L. Ed. 558; leave to file petition for re-

hearing denied 290 U. S. 602, 78 L. Ed. 528.

ELEED THROUGH= POOR COPY

In Bell v. Hood, decided by this Court on April 1, 1946,

90 Fed. advance sheets 758, this Court speaking through

Mr. Justice Black, said that;

«“* * ®* @ suit may sometimes be dismissed for

want of jurisdiction where the alleged claim under the

Constitution or federal statute clearly appears to be

immaterial and made solely for the purpose of obtain-

ing jurisdiction or where such a claim is wholly insub-

stantial and frivolous.’’

We submit that the last quoted statement is entirely

applicable to the contentions of appellants with respect to

Section 948 id. Appellants in addition to their assignment

of error number 14, in which they attack Section 948 id., as

a bill of attainder, make two further assignments of error

with respect to the same section of the statute as follows:

“15. The court erred in denying appellants’ rights

under the XIVth Amendment by affirming the judg-

ment dismissing the case and assessing the penalty

provided by Section 948 on the alleged ground that

three petitions had been held insufficient on demurrer.

‘18. The court erred in denying appellants’ rights

under the XIVth Amendment by its judgment of dis-

missal and assessing a penalty against appellants.’’

These assignments are elaborated in their Jurisdictional

Statement under ‘‘How Federal Questions Were Raised,’’

by the allegations that ‘‘said action was dismissed by the

court and appellants’ right to recover or to institute any

further action forfeited, and a statutory penalty in favor

of appellees adjudged against appellants, * ° °” and

under ‘‘B,’’ ‘‘The Missouri Partnership Administration

Statute conflicts with the XIIITH XIVTH Amend-

ments and Treaty with France of April 30, 1803,’’ wherein

appellants say of Section 948 id., that:

‘‘Said statute, as applied herein by the trial court,

was void because contrary to the law of the State and

Nation, in that the trial court, without a hearing, and

by denying appellants’ request for a hearing (421) re-

quired by the rules (402-406), was binding on the court

(Meierhoffer v. Hansell, 294 Mo. 195). That judgment

(424-425) forfeited appellant’- right to maintain the

action or to institute another, and, with its assessment

of a penalty, made said statute a mere legislative decree

and a true bill of pains and penalties.’’ (Italics added

for emphasis. )

They assert the dismissal affirmed on appeal in the instant

ease deprived appellants of the right to bring and maintain

any action claiming damages for their alleged loss and thus

was as much a bill of attainder as if a punishment had been

directly imposed.

The challenged judgment, under the unvarying decisions

of the Supreme Court of Missouri, has no greater effect than

any other judgment on demurrer and is not a bar to the

commencement or maintenance of another action. In Gor-

don v. Burris, 125 Mo. 39, 28 S. W. 191, the Supreme Court

held, with respect to the instant contention that:

‘*As the party in fault because of having filed three

defective pleadings is required to pay treble costs, it is

to be presumed that judgment is to be rendered for such

costs. But there is no intimation in the section that a

judgment is to be rendered on the merits, or that such

judgment shall be a bar to any future proceedings in-

volving the same facts.’’

In Bennett v. Bank, 61 Mo. App. 297, |. c. 301, the Kansas

City Court of Appeals held as to the effect of Section 948

id., as a bar to further action, as follows:

‘*It seems plain to my mind that a judgment entered

on the third demurrer is of no greater force than if

ELEED THROUGH— POOR COPY

the plaintiff had, on the first or second adverse ruling,

declined to amend, and judgment had been entered

against him. A judgment in either case is a judgment

on demurrer, and the one is as effective to shut off

future litigation as the other.’’

Appellants under subdivision “DP”? of their Jurisdictional

Statement asserting ‘‘There Was No Misjoinder of Causes

of Action or of Parties Plaintiff”’ rely upon Wilson Co. v.

Inst. Co., 300 Mo. 1, 254 8. W. 266. In the course of the

opinion therein, the Supreme Court of Missouri holds (300

Mo. 1, l. e. 36) with respect to Section 948 id., as a bar, as

follows :

‘But it is equally as well settled that such final ad-

judication, in order to be a bar, must have been on the

merits. In other words, a judgment on demurrer is not

a bar to a subsequent suit between the same parties

touching the same cause of action. (Wells v. Moore, 49

above referred to authorizes the court upon sustaining

the third demurrer to do no more thar enter the usual

judgment on demurrer, give judgment for the penalty

of treble costs and dismiss the petition, thus leaving

the plaintiff free to institute a new suit if he chooses to

do so. (Gordon v. Burris, 125 Mo. 39, 28 S. W. 191;

Bennett v. Southern Bank, 61 Mo. App.)”’

The foregoing authorities completely refute the conten-

tion by appellants that Section 948 id., imposed a penalty

upon them or deprived them of any rights under Amend-

ment XIV to the Constitution of the United States. Section

10 of Article I of the Constitution provides that

‘No State shall * * ° pass any Bill of Attainder

ee @9?9

Section 948 R. S. Mo. 1939 makes no provision that the

party whose petition is dismissed thereunder shall be bar-

red from bringing another action as the Supreme Court of

Missouri has repeatedly held in the above cited cases and

others. The Supreme Court of Missouri in its opinion in

the instant case (193 S. W. 2d 588) held that the judgment

of the trial court was proper under Section 948 id., as thus

theretofore interpreted by the Missouri Supreme Court.

Thus there is no point or substance to the appellants’ as-

signments of error number 15 and number 18, since the chal-

lenged judgment did not deprive the appellants or either of

them of any right which they may have to bring or maintain

another action; and neither under said assignments nor

under appellants’ assignment of error number 14, is there

any plain, substantial, non-frivolous assertion of any Fed-

eral right which could be defeated by the application of the

local rule of practice prescribed by Section 948 id. The

question of local practice is not interwoven with the decision

of any question of national authority, because appellants,

to sustain their contention that the instant judgment is not

based on a non-Federal ground were compelled to assert the

proposition that the challenged judgment was on the merits

in the sense of being a bar to a further action, which conten-

tion the above cited Missouri authorities absolutely refute,

and thus render inapplicable the authorities cited by appel-

lants under ‘‘C’’ of their Jurisdictional Statement. In

Parker v. McLain, 237 U. 8. 469, 59 L. Ed. 1051, on a similar

proposition, this court held the decision of the State Su-

preme Court controlling. It said:

‘Whether by consenting to the revivor, and thus

recognizing the executrix as the real party in interest

(see Gen. Stat. (Kan.) #6023), the defendant was

estopped from subsequently challenging her capacity to

maintain the action, was purely a question of local

law or practice, and its decision by the supreme court of

the state is controlling.’’

ELEED THROUGH= POOR COPY

_ —

In Johnson v. Drew, 171 U. 8. 93, 43 L. Ed. 88, this court,

through Mr. Justice Brewer held:

“The ruling of the trial court in sustaining the de-

murrer to the first equitable plea and refusing leave to

permit the second to be filed presents no question for

the consideration of this court, for it was held by the

supreme court of the state that under the plea of not

guilty all the matters of defense set up in these equitable

pleas could be offered in evidence and made available;

and, in fact, the defendant on the trial did offer his testi-

mony to establish them. So, the substantial rights of

the defendant were not prejudiced, and the ruling in-

volved merely a question of state practice.’’

The question being thus one of local practice the reason

for the rule was forcefully stated by this court in New

Orleans Waterworks Co. v. Louisiana, 185 U. 8. 336, 1. ¢. 353,

46 L. Ed. 936, 1. c. 944, in these words:

‘‘If it were otherwise, then any alleged error in the

decision by a state court, in applying state law to the

case in hand, resulting in a judgment against a party,

could be reviewed in this court on a claim that on ac-

count of such error due process of law had not been

given him This cannot be maintained.’’

In Hallinger v. Davis, 146 U. 8. 314, 1. ¢. 320, 36 L. Ed.

986, 13 8. Ct. 105, this court said:

“This requirement of the Constitution is met if the

trial is had according to the settled course of judicial

proceedings. Due process of law is process due accord-

ing to the law of the land. This process in the states

is regulated by the law of the state.’’

In L. & N. Ry. Co. v. Woodson, 134 U. 8. 614, 33 L. Ed.

1032, the contention was made that a Tennessee statute for-

bidding the granting of more than two new trials in the same

cause on the same facts was in conflict with Amendment XTV

to the Constitution of the United States. This court held:

‘*Courts rarely grant a new trial after two verdicts

upon the facts of favor of the same party, except for

error of law, and the Statute, in the interest of the

termination of litigation, makes that imperative which

would otherwise be discretionary. (Citing cases.)

‘*We can perceive nothing in the Statute thus applied

which amounts to an arbitrary deprivation of the rights

of the citizen, and concur with the Supreme Court of

Tennessee that this Act, which had been in force for

more than sixty years before the adoption of the Four-

teenth Amendment, was not invalidated by it, while the

Fifth Amendment had no application whatever.’’

There iz no provision of the Constitution or Statutes of the

United States which gives the Appellants the right to main-

tain jointly in the courts of Missouri, the instant suit for

their alleged cause or causes of action and no rights under

the Constitution or laws of the United States were denied

to Appellants by the holding of the court that there was a

misjoinder of parties plaintiff. (Appellants’ Assignment

of Errors numbers 20, 33 and 34)

The premise underlying the last mentioned Assignments

of Error is that appellants had some right both created and

protected by Federal law, to bring and maintain jointly,

the instant action. They have entirely failed to demon-

strate any such right.

All that the Supreme Court of Missouri has decided, in

the instant case, is that under the applicable law appellants

had no right to maintain jomély the instant suit. The trial

court sustained the demurrers on the one ground of mis-

joinder of parties plaintiff (R. 401, 421-423). The Mis-

ELEED THROUGH— POOR COPY

——_

souri Supreme Court in its opinion (193 S. W. 2 588, 1. «.

591, 592) held that:

‘Judge Ridge sustained the demurrers on the sole

ground of misjoinder of parties, but the demurrers

also attacked the petition for misjoinder of alleged

causes of action and for failure to state a cause of

action. We think the reason assigned by the trial court

is sufficient, but his ruling can be sustained on the other

grounds mentioned. * ° °

‘None of these assignments is germane to the ques-

tion of whether the Fifth Amended Petition contains

a misjoinder of parties plaintiff or fails to state a jount

cause of action. (Emphasis added.)

The ground of failure to state a cause of action as sus-

tained by the opinion quoted, thus relates solely to the

failure to state a cause of action in favor of plaintiffs

jointly. Fadler v. Gabbert, 333 Mo. 851, 1. c. 863, 63 S. W.

9d 121, 1. ¢. 127; Akins v. Hicks, 109 Mo. App. 95, 1. ¢. 99,

83 S. W. 75, l. e. 76. Counsel for appellants explicitly

requested the court to determine whether or not the peti-

tion states a cause of action as to either plaintiff. This the

trial court did not do (R. 401, 422). Consequently, there

was no decision against the validity of Sections 1979, 1980

and 1981, U. S. R. S. (Sees. 43, 47 and 48, Title 8 U. S. C.)

or against the right of either appellant to maintain an

action thereunder. The decision was that they had no right

under the applicable Missouri law of procedure to join in

such an action.

Appellants rely, in their argument as to the right of

joinder, which is all that is pertinent here, on cases such as

Wells v. Davis, 303 Mo. 388, a suit by an administratrix

alone, under the Federal Employees’ Liability Act and

various cases in which it is claimed that defendant parties

have been held by Federal decisions to be entitled to join

in actions grounded upon the Federal Civil Rights Acts.

Biicerenircssinninsiensessiaeneenhiatiin

Wells v. Davis, supra, is specitically not in point on the

question of alleged right of joinder since it was prosecuted

by the administratrix alone. It does, however, give point

to a distinction which is fatal to the theory of appellants,

Wells v. Davis points out clearly that the Federal Em-

ployees’ Labor Act vests the right of action granted, in

the personal representative as a part of the law itself. The

act vests the appointed representative with all the rights

given thereunder (303 Mo. |. ¢. 404). The Federal Civil

Rights Acts relied on do not specifically vest any person in

a representative character with the rights of action created

or make any right of joinder a part of the cause of action.

R. S. Section 1979, Title 8 U. S. C. See. 43, gives the lia-

bility to ‘‘the party injured.’’ Section 1980 R. 8S. Title 8,

See. 47 id., specifies ‘‘the party so injured or deprived.’

Section 1981 R. S. Title 8 Sec. 48 id., awards the recovery

‘*to the party injured or his legal representative’’; but none

of the three sections creates any right of joinder, or at-

tempts to abrogate in any respect the civil procedure of the

State in whose courts an action under Federal sections

may be brought.

Appellants choose the state forum. As an incident they

were entitled to any advantages, and burdened by any

disadvantages, as to the law of procedure, which that choice

involved. Mo. ex rel v. Taylor, 266 U.S. 200, 69 L. Ed. 247,

45 3. Ct. 47, 42 A. L. R. 1232, 1. c. 1235; Mimneapolis & St,

Lows R. Co. v. Bombolis, 241 U. 8. 211, 221, 60 L. Ed. 961,

965, 36 S. Ct. 595, Ann. Cas. 1916 E 505, 506; Niehaus v.

Jos. Greenspon’s Son Pipe Corp., 237 Mo. App. 112, 164

S. W. 2 180, l. c. 186; Rockwood v. Crown Laundry Co., 352

Mo. 561, 1. c. 564, 565, 178 S. W. 2 440, 1. ¢. 442, 443.

No right of joinder being conferred upon appellants by

the Federal statutes on which they rely, they are subject

to the applicable rules of local practice, though claiming a

ELEED THROUGH= POOR COPY

right of action under Federal statutes. In the Bombolis

case, supra, this court made a basic application of that

principle, by holding that local courts are entitled to act

under a local practice permitting less than a unanimous

verdict, in actions to enforce rights under Federal statute

like the Employees’ Liability Act, notwithstanding the

requirement of the Seventh Amendment to the United

States Constitution that trials by jury be according to the

course of common law, i. e., by unanimous verdict. On

questions of joinder, the Missouri appellate courts have

rightfully acted upon that principle in cases arising under

the Fair Labor Standards Act of 1938, Title 29, U. S. C.

Sees, 201-219. Niehaus v. Jos. Greenspon’s Son Pipe Corp.,

supra, Rockwood v. Crown Lawndry Co., supra. Except

in matters governed by the Federal Constitution or by

Acts of Congress, the law of the state is to be applied,

whether it be declared by local statute or by the decision of

its highest court. Erie R. Co. v. Tompkins, 304 U. S. 64, 82

L, Ed. 1188.

Under the applicable law of Missouri, the appellants

could not join in bringing or prosecuting the instant action.

In the Niehaus case, supra, the plaintiffs, as husband and

wife, joined in the action, each asserting his or her own

individual right of recovery for unpaid minimum wages,

overtime, damages and attorneys fees, under the Fair

Labor Standards Act. The St. Louis Court of Appeals,

commented that under local laws and practice, such two

causes of action, neither of which affected both plaintiffs

nor arose out of the same transaction, could not be com-

mingled as though a single cause of action were involved,

nor even stated as separate counts in one petition. It fur-

ther held that the case did not purport to be a class suit,

and had it been such, could not have been maintained at law.

The Supreme Court of Missouri approved the ruling in the

Niehaus case by citing it as a precedent in Rockwood y,

Crown Laundry Co., supra. The plaintiffs, husband and

wife, in Picking v. Pa. R. Co., 151 F. (2d) 240, upon which

appellants rely, could not have maintained their suit in a

Missouri State court under the foregoing applicable Mis-

souri authorities. Their petition, like that in the instant

suit, was so voluminous, illogical and obscure that it was

indicated the pleadings should be so amended as to shape

the issues, but under the law, rightly applied in this case

it would be impossibie, so to amend the complaint as to state

a valid cause of action, in a Missouri State Court.

The Fair Labor Standards Act in Title 29 U. S. C., See,

216 provides that the action thereunder may be maintained

in any court of competent jurisdiction by one or more

employees for and in behalf of himself, or themselves and

other employees similarly situated and yet the Supreme

Court of Missouri in applying the law of joinder of plain-

tiffs applicable in this case, held that the local procedure

governed. In Rockwood v. Crown Laundry Co., 352 Mo.

561, 178 S. W. 2d 440, it was held:

‘*the personal action of plaintiff may not be united

with those brought by her in a_ representative

capacity,”’

although the action was brought under the Federal Fair

Labor Standards Act containing the provision thereof last

mentioned. Since the Civil Rights Acts contain no provi-

sion authorizing joinder, as pointed out above, the reason-

ing in the Crown Laundry case supra, that plaintiff in-

dividually is not interested in nor a necessary party to the

cause of action asserted in her representative capacity for

and on behalf of her fellow employees similarly situated and

vice versa, is controlling here. In Reppetto v. Walton, 313

Mo. 182, 281 S. W. 411, 415, 416, the Supreme Court of

Missouri held that the executrix could not join with herself

ELEED THROUGH=— POOR COPY

—

in her individual capacity as a plaintiff to recover from

the defendant, moneys alleged to be due the plaintiff from

the estate of the deceased of which one of the plaintiffs was

executrix. That decision reaches the present case. Appel-

lants cite Georgia v. Pa. R. Co., 324 U. S. 439, 89 L. ed. 1051.

In the opinion therein this court said of the capacities in

which plaintiff sued, that:

‘*Georgia sues in four capacities only two of which

we need mention: (1) in her capacity as a quasi-

sovereign or as agent and protector of her people

against a continuing wrong done to them; and (2) in

her capacity as a proprietor to redress wrongs suffered

by the State as the owner of a railroad and as the owner

and operator of various institutions of the State.’’

It is manifest there is nothing in this case which by any

stretch of the imagination could be held to authorize the

joinder by an individual, of herself as an executrix in the

same action. The cited case invoked the original juris-

diction of this court. In addition to its capacity as a sover-

eign state, plaintiff sued as a quasi-sovereign or protector

of her people against a public wrong. This decision could

have no proper application to a case brought in the State

Court under the Federal Civil Rights Act, which vests no

specific person or entity with a right of action as a part of

the terms of the statute and contains no joinder provisions.

Appellants apparently cite Bell v. Hood, 90 L. ed. 758, 66

Sup. Ct. 773, as going to the validity of a cause of action

alleged under the Civil Rights Act. In that case the action

had been brought in a district court of the United States

and the question passed upon was as to the sufficiency

of the allegations of the complaint to invoke the Federal

jurisdiction, and this court, through Mr. Justice Black,

pointed out not only that the issue as to the sufficiency of

the pleaded facts to authorize a recovery was not material

——

to the determination of the jurisdictional question, bat

also that the issue of law as to whether a money recovery

for damages could be had in the action under the Federal

law relied upon, had never been determined by this couri,

No question as to the number of plaintiffs, or their respect-

ive capacities, or their right te join as plaintiffs in the

action, was passed upon either directly or indirectly in

Bell v. Hood, supra.

Many of the contentions made by appellants herein in

their Jurisdictional Statement are entirely pointless and

irrelevant because they proceed upon the insupportable

theory that the Supreme Court of Missouri in its opinion

193 SW 2 588 l.c. 592) passed upon all of the allegations

of the Fifth Amended Petition to hold that same stated

no cause of action at all, (as distinguished from failure

to state a joint cause of action), and affirmed a judgment

which had the legal effect of barring any further action

on the alleged facts. That court (lc. 592) referred by

citations, to the cases in which the principal substantive

contentions of the appellants had already been litigated,

and raised in their respective Assignments of Error in

applying to this court for certiorari, which this court denied

as long ago as October 9, 1933, 290 U. S. 642, 78 L. ed. 558

(leave to petition for rehearing denied December 11, 1933,

290 U. S. 602, 78 L. ed. 528) and May 18, 1936, 298 U. S. 675,

80 L. ed. 1397, respectively. We have qouted from the

opinion of the Supreme Court of Missouri at the beginning

of this point showing that its decision went solely to the right

of appellants to maintain jointly the instant action and we

have shown that the effect of the affirmed judgment of dis-

missal of the pending petition was not that of a judgment

on the merits, and did not preclude bringing or maintenance

of another action on the facts alleged, by our separate

point to that effect.

ELEED THROUGH= POOR COPY

Appellants complain in their motion for rehearing in the

Snpreme Court of Missouri, that it had overlooked Fadler

vy. Gabbert, 333 Mo. 851, 63 SW 2 121, and Scott v. Alton

Bank & Trust Company, (Mo.) 175 S W 920, in ruling

on the question of misjoinder of plaintiffs, or failed to

apply same as controlling decisions of the court. In the

opinion however, (193 SW 2 588) the court construed the

opinion in the Fadler case as holding that misjoinder of

parties, though not listed as a specific ground of demurrer

in the Missouri statute, was in fact such a ground because

where there is a misjoinder ‘‘the petition does not state

a cause of action.’’ In Scott v. Alton Bank & Trust Com-

pany, supra, the grounds of (1) defect of parties plain-

tiff and (2) failure to state facts sufficient to constitute a

cause of action, were interposed by demurrer against each

count of the petition and the court ruled that ‘‘the defenc-

ants’ demurrer to petition was properly sustained, as

no joint right of action appears from the petition.’’ (Le.

925.) This but clarifies the ruling in the instant case and

expresses the reason why no cause of action is stated, i.e.,

no cause of action was pleaded in favor of the plaintiffs

jointly, as neither had any right or interest in the cause

of action of the other. This is well expressed in Neiderburg

v. Golluber, (Mo.) 162 SW 2 592, wherein the Missouri

Supreme Court says of the identical situation in the instant

case, one attempting to join individually with himself as

administrator of the estate of his deceased spouse, that:

‘*Accordingly, plaintiff as administrator would be

entitled to the rent from the real estate prior to Effie

V. Niederberg’s death (Sec. 94, supra), but would

have no interest in the rent or income derived from

such real estate after her death. On the other hand,

plaintiff, as the widower, would have no right to re-

cover or join in the recovery of the rent or income

derived from the property by defendants prior to the

——

death of Effie V. Niederberg. The widower and heirs

would be entitled to all income and rental value after

her death, unless required for purposes of administra-

tion, (citing statutes). The plaintiffs, therefore, are

not ‘united in interest’ in their claim for rental value

of this alleged trust real estate, (citing statutes). Nor

are they both necessary parties to a ‘complete deter-

mination or settlement of the quesiion involved.’ See,

852 R. S. 1939 Mo., R. S. A. No. 852. Nor are both

plaintiffs (legally) interested in the subject matter,

and in obtaining the relief demanded so as to be prop-

erly joined as plaintiffs under Sec. 851, R. S. 1939 Mo.”

The applicable Missouri law was that the appellants

herein could not join in the same action. But if the trial

court and the Supreme Court of Missouri had erred in

holding to the contrary, it was purely a question of state

practice upon which their decisions were final. U. 8. vy.

Pink, 315 U. 8. 203, 86 L. ed. 796, 62 S. Ct. 552, where, in

reply to a suggestion that this court on certiorari to the

Supreme Court of New York inquire into a question of

local procedure, this court said:

‘‘That is distinctly a question of state law on which

New York has the last word.”’

Ill

Appellants’ claim that the demurrers to the Fifth

Amended Petition were sustained without notice or hearing

is not sustained by the record.

(Appellants’ Assignment of Error No. 16. Appellants’

Jurisdictional Statement, pp. 3 and 19.)

The record shows these demurrers to Plaintiffs’ Fifth

Amended Petition were on file prior to the 6th of December,

1944 (Record 389-391, 393). On December 8th, 194,

Appellants being represented in court by Mr. O’Donnell,

ELEED THROUGH= POOR COPY

—

Appellee Weede applied to the court for permission to

amend her separate demurrer and the court permitted the

same to be filed (Record 393). The court set the hearing

on the Commerce Trust Company separate demurrer and

the Weede demurrer for hearing on Wednesday, the 13th

day of December, 1944 (Record 389-391,393). On December

13, 1944, the court met with all parties represented. On

that day the court disposed of motions of Kopp, Weede,

and Howard to strike out Plaintiffs’ replies (Record 416-

419). No ruling was made on the demurrers on that date.

The record is silent as to any hearings on the demurrers

until the order sustaining them on December 30, 1944.

This is without significance, as it is not customary to

record in the records arguments of counsel on days where

the court made no ruling to be recorded in the court records.

That such hearings were held is clearly shown by the record

in this ease. The bill of exceptions prepared by Appellants

shows (Record 419) that ‘‘the cause came on regularly for

hearing’’ on December 30, 1944, that the Appellants were

represented thereat by Mr. Martin J. O’Donnell (Record

420). By leave of court Mr. O’Donnell amended Plaintiffs’

Fifth Amended Petition by striking therefrom Paragraph

45 (Record 420-422, 423). Defendants, by leave of court,

thereupon refiled their demurrers to said Fifth Amended

Petition as then amended (Record 420-423). At that

juncture the record shows the following occurred (Record

420-421) :

‘‘Mr. O’Donnell: I want to make a short record to

aid the Court. If the Court please, in the performance

of our duty to the plaintiff, we feel that it is our duty

to call attention to the fact that now that the petition has

been amended by eliminating a part of the grounds of

their objection, and since the Court hasn’t had any argu-

ment, hasn’t made up its mind as to whether or not the

petition states a cause of action as to either party,

then we respectfully suggest that the matter be held

until the Court has a chance to look into the whole

proposition, and make up its mind as to whether or

not the petition states a cause of action. Also, since

the petition has been just amended and they have just

filed their demurrers, under the rules of the Court

I believe we have a right to—I don’t want to be taking

any technical advantage, but I think it is my duty to

the plaintiff to suggest that we are entitled to two days’

notice, because there is a new question in the case,

it is a new petition.

**The Court: I do not intend to make any such ruling

as that. It does seem rather futile to me to have made

up my mind on this one point, which was so apparent

to me in this case from the pleadings, when I asked for

the briefs, to have additional number of days’ argn-

ments and submission of briefs here. I understand

counsel for Defendants are willing to rely upon this

one ground that is stated in their demurrer.

‘‘Judge Goodrich: We think that ground is well

taken.

‘*The Court: I am going to make an order sustaining

the demurrer on that one ground.

‘*Mr. O’Donnell: In view of the fact that the Court

has indicated his notion without announcing the

ruling——

‘*The Court: I have announced my ruling already,

that I am sustaining the demurrers on the grounds

of misjoinder of parties plaintiff.

‘‘(To which ruling and action of the Court the

Plaintiffs, by their counsel, at the time duly excepted

and still except.)’’

The language of the court shows there had been briefs

and arguments directed, at least, to the issue of misjoinder

of parties plaintiff. That such is the case will not be

denied by Appellants’ counsel. The court had made up

his mind on that issue and had already indicated his views.

We submit the language of Mr. O’Donnell shows he was

seeking further hearing on the propositions of whether the

ELEED THROUGH= POOR COPY

tion stated a cause of action as to either party and as to

ther the petition stated a cause of action (R. 420).

re was no request for further arguments on the issue of

oinder of parties plaintiff. The amendment to Plain-

’ Fifth Amended Petition just effected by striking out

agraph 45 was immaterial to the issue of misjoinder

arties plaintiff. That this is so is shown by the opinion

he Supreme Court of Missouri, Moffett v. Commerce

st Co., 193 S. W. 2d 588, where the Court said: (1. ¢. 591)

‘*The demurrers to the fifth amended petition were

filed on or before December 6, 1944. Thea appellants

filed a reply on the theory that the demurrers were

really answers, which reply was after a hearing

stricken out on respondents’ motions. Then on Decem-

ber 30, 1944, with all parties present by counsel, the

demurrers were presented to Judge Ridge. Appel-

lants, by leave of court, withdrew paragraph 45 of

their fifth amended petition, and respondents refiled

their demurrers. Appellants requested at least two

days’ delay on the ground that the demurrers had

just been filed. The court, in the exercise of proper

discretion, denied this request. Kuh v. Garvin, 125

Mo. 547, 28 S. W. 847, loc. cit. 851. The withdrawal of

paragraph 45, which related to a suit brought by

respondent Kopp against Mrs. Moffett, in no way

affected the point made in the demurrers as to mis-

joinder of parties plaintiff or failure to state a cause

of action. We see no violation of the rules.’’

he self-serving statements of counsel inserted in the

rd at Page 406 and quoted by Appellants on Page 19

heir Jurisdictional Statement to the effect that these

jurrers were sustained ‘‘ without notice thereof for hear-

or jurisdiction so to do’’ are disproved by the record

if.

| is therefore apparent that Appellants’ counsel were

n full opportunity to brief and argue the issue of mis-

joinder of parties plaintiff, the only issue ruled by the

Court, and that they took full advantage of that oppor.

tunity. They were satisfied to the extent that they re.

quested no further searing on that issue.

To demonstrate that the trial court took the same view

as to the ruling he made which was later approved by the

Missouri Supreme Court, we quete the following from the

record (Record 422) :

‘*Mr. O'Donnell: We respectfully request the Court

to determine the fact whether or not the petition states

a cause of action as to either plaintiff.

“‘The Court: If the defendants are not insisting

on those other grounds, I will just overrule the other

grounds of the demurrer.

‘*Mr. Harding: If Your Honor please——

** Judge Goodrich: I think on that the law is that

sustaining a demurrer on the ground of misjoinder of

parties plaintiff has the effect of saying that there is

no joint cause of action. That is the law.

**The Court: That is the law. There is no question

about it.’’

Appellants’ contention that the Missouri Supreme Court

erred in not deciding the case on appeal under the new

code of civil procedure although the case was tried below

under the old code before the effective date of the new code

is without merit and raises no Federal question. (Appel-

lants’ Assignment of Errors No. 22, Appellants’ Jurisdic-

tional Statement, pp. 38-39.)

Appellants next contend that as the new Missouri Code

of Civil Procedure had become operative prior to the time

this case was decided by the Supreme Court of Missouri

on appeal that court was bound to apply the new Civil

E LEED THROUGH= POOR COPY

Code and reverse the cause even though the case was

properly tried under the Code in force at the time the

Circuit Court sustained the demurrers.

In the first place, this particular point was not raised

in Appellants’ briefs or in their motion for rehearing

or to transfer to the court im bane filed in the Missouri

Supreme Court. Even in their motion for a rehearing

or to transfer to the court in banc they complain only of

errors originating in the trial court and make no reference

to any claimed error originating in the Missouri Supreme

Court. That contention was never called to the attention

of the Missouri Supreme Court in any manner and that

court was never given an opportunity to pass on this ques-

tion. For that reason alone, such question, now belatedly

sought to be raised, is not before this court. The rule is

stated by this court in Hunter Company v. McHugh, 320

U. 8. 222, 227, 64 S. Ct. 19, 21, as follows:

this Court, is reviewing on appeal the

judgment of the State Supreme Court is not free to,

and will not adjudicate the constitutionality of orders

No. 28-C and No. 28-C-10 where the state court whose

judgment is under review has had no opportunity to

pass upon their validity under state law or the Consti-

tution of the United States. See McGoldrick v. Com-

pagnie Generale, 309 U. 8. 430, 433 et seq., 60 8. Ct.

670, 672, 84 L. Ed. 849.”’

The reason for the requirement that this Court will not

ordinarily consider a question not passed on by the State

Court was well stated by this Court in the case of Huddle-

ston v. Dwyer, 322 U. 8S. 232, 237, 64 S. Ct. Rep. 1015, as

follows: (1. ¢, 1018)

‘*We have often had occasion to point out the im-

portance to the orderly judicial administration of state

laws in the federal courts that questions of state law

uired to be decided here should first be considered

state or federal court from which

to this Court for review. Dorchy

264 U. S. 286, 290, 291, 44 S. Ct. 323, 324,

Ed. 686; State of Missouri ex rel. Wabash

ice Com. 273 U. S. 126, 131, 47

Ed. 575; Ruhlin v. New York

. 8. 202, 206, 207, 58 S. Ct. 860,

; New York ex rel. Whitman y,

318 U. S. 688, 690, 691, 63 S. Ct. 840, 841, 87

L. Ed. 1083. The decision of the highest court of a

state on matters of state law are in general conclusive

upon us, and ordinarily we accept and therefore do

not review, save in exceptional cases, the considered

determination of questions of state law by the inter-

mediate federal appellate courts, cf. Ruhlin v. New

York Life Ins. Co., supra. When we are called upon

to decide them, the expression of the views of the

judges of those courts, who are familiar with the

intricacies and trends of local law and practice, if

not indispensable, is at least a highly desirable and

important aid to our determination of state law ques-

tions. This Court will not ordinarily decide them with-

out that aid where ‘hey may conveniently first be de-

cided by the court whose judgment we are called upon

to review. See, e.g., Ruhlin v. New York Life Ins. Co.,

supra; Rosenthal v. New York Life Ins. Co., 304 U.S.

263, 264, 58 S. Ct. 874, 875, 82 L. Ed. 1330; West v.

A. T. & T. Co., 311 U. 8. 223, 241, 61 S. Ct. 179, 185,

85 L. Ed. 139, 132 A. L. R. 956; Klaxon Co. v. Stentor

Electric Mfg. Co., 313 U. S. 487, 497, 61 S. Ct. 1020,

1022, 85 L. Ed. 1477; Meredith v. Winter Haven,

supra.”’

Fez

* -

ger

got

ong

The question here involved is one of construction of the

Missouri Statutes establishing a new code of civil pro-

cedure. With reference to its applicability to proceedings

had under the old code prior to the effective date of the new,

we believe this is a State matter involving no federal ques-

ELEED THROUGH= POOR COPY

tion. In the case of Midland Realty Company v. Kansas

City Power & Light Company, 300 U. S. 109, 110, 113,

57 S. Ct. Rep. 345 and 346, the court said:

‘‘The questions for decision are whether, as con-

strued in this case by the highest court of Missouri, the

- statutes of that State regulating public utilities violate

article 1, section 10 of the Constitution of the United

States, declaring that ‘No State shall * °* °

any * °* ° Law impairing the Obligation of Con-

tracts,’ or section 1 of the Fourteenth Amendment de-

claring ‘nor shall any State deprive any person of life,

liberty or property, without due process of law.’

‘These questions are to be decided upon the con-

struction that the state supreme court put upon the

statute.”’

Section Three of the new Missouri Code here involved,

Laws of Missouri 1943, page 357, Mo. Rev. St. Ann., Sec-

tion 847.3, is as follows:

“This code will take effect on January 1, 1945. It

governs all proceedings in actions brought after it

takes effect and also further proceedings in all actions

then pending, except to the extent that in the opinion

of the court its application in a particular action pend-

ing when this code takes effect would not be feasible

or would work injustice, in which event the former

procedure applies.’’

The Missouri Supreme Court in the present case in rul-

ing against Appellants’ then contention that this statute

had potential existence prior to its effective date held that

it affected only proceedings after the effective date of

January 1, 1945, which was subsequent to the entry of the

judgment of the trial court. The express language of the

statute quoted above would seem to permit of no other

construction.

On this point the Missouri Supreme Court said in this

case (Moffett v. Commerce Trust Company, 193 S. W. (2d)

588, 589-590:

** (1) Appellants are in error in construing the new

Civil Code, Mo. Laws, 1943, pp. 353-397, Mo. R. S. A.

Sec. 847.1 et seq., as declaring what the law was at

the date of its passage. They reach this result by em-

phasizing the word ‘is’ in the sentence ‘misjoinder

of parties is not a ground of demurrer to an action,’

but they overlook further provisions of the Code, See.

3, to wit: ‘This code will take effect on January 1, 1945,

It governs all proceedings in actions brought after it

takes effect and also further proceedings in all actions

then pending, except * * °.’ (Emphasis ours.)

Section 922, although now repealed, was in force on

December 30, 1944, the date Judge Ridge ruled on the

demurrers.”’

(Italics by the court.)

But even if this question had been presented to the

Missouri Supreme Court and actually ruled upon by it,

the result would necessarily have been the same. It is the

well-established Missouri rule that procedural statutes

operate prospectively only after their effective date as to

future proceedings in actions pending on the effective date

of such statute. The Missouri rule is so well stated in the

leading case of Lober v. Kansas City, 339 Mo. 1087, 74

S. W. (2d) 815, that we quote liberally therefrom as follows:

(1. e. 826)

** (15) It should be observed, however, that even in

matters of procedure a change in the law by new

statute or authoritative court decision does not act

prospectively or in the future only in the sense that

the change does not apply to cases already pending.

Such change does usually apply te cases then pending

as to future proceedings therein, but does not make

void or invalid the proceedings already had if same

were in conformity to the law as it was before the

ELEED THROUGH= POOR COPY

change. Clark v. Railroad, 219 Mo. 524, 533, 118 S. W.

40, wherein the court quoted the correct rule in this

respect from 2 Lewis’ Sutherland, Statutory Con-

struction (2d Ed.) Sec. 674, to-wit: ‘No person can

claim a vested right in any particular mode of pro-

cedure for the enforcement or defense of his rights.

Where a new statute deals with procedure only, prima

facie it applies to all actions—those which have ac-

erued or are pending, and future actions. What was

before a subject of equitable relief may be made triable

by jury without affecting vested rights. If before

final decision a new law as to procedure is enacted

and goes into effect, it must from that time govern

and regulate the proceedings. But the steps already

taken, the status of the case as to the court in which

it was commenced, the pleadings put in, and all things

done under the late law, will stand, unless an intention

to the contrary is plainly manifested; and pending

cases are only affected by general words as to future

proceedings from the point reached when the new

law intervened. If what has been done under the

old law is bad or insufficient (or vice versa) under

that law it remains so.’ And so this court correctly

ruled in State ex rel. v. Haid, 330 Mo. 1093, 52 S. W.

(2d) 183, 186, that: ‘It is a well-settled rule that, if

before final decision in a case a new statute as to

procedure goes into effect, it must from that time

govern and regulate the proceedings. o> ae

a like result is produced by a change in the construction

of a statute relating to procedure by a court of last

resort.’ This is the extent to which this court has

gone and no further.”’

This judgment had been entered and an appeal taken by

appellants on the same day of the judgment, (to preserve

their rights on appeal under the old Code which gave them

greater latitude as to length of briefs and other ad-

vantages), all prior to the effective date of the new Code

on January 1, 1945. There was thereafter no proceedings

had in the Circuit Court and under the established rule in

Missouri the changes wrought by the new Code did not

invalidate the proceedings theretofore taken in the Circuit

Court which were valid under the old Code then in force.

In the case of Anson v. Tietze, 190 S. W. (2d) 193 (not

yet officially reported), the Missouri Supreme Court said:

1. e. 198)

‘It is well settled that when a new statute as to

procedure goes into effect before the final decision of

a case it governs and regulates matters of procedure

therein subsequent to its effective date. Clark v. Kan-

sas City, St. L. & C. R. Co., v. Haid (Banc), 330 Mo.

1093, 1100 (11), 52 S. W. (2d) 183, 186 (3-5).”’

That is the last expression of the Missouri Supreme Court

we have found and confirms its adherence to the rule that

a change in procedure affects only ‘‘matters of procedure

therein subsequent to its effective date.’’

In the case of Crawford v. Arends, 351 Mo. 1100, 176

S. W. (2d) 1, the Court, in banc, held an adopted child,

claiming as a lineal descendant under a will, not entitled

te recover. In a motion to modify or clarify the opinion,

it was called to the attention of the Court that five days

before the opinion of the Court was delivered a new statute

had been enacted which, it was claimed would allow the

claimant to recover. The Court wrote a per curiam opin-

ion overruling said Motion to Modify or Clarify Opinion

in the course of which the Court said: (1. ¢. 7)

‘*It will be noticed the section says the adopted per-

son ‘shall hereafter be deemed and held,’ etc. The

word ‘hereafter’ as thus used refers to the date when

the Act takes effect. 19 Words and Phrases Perm.

Ed., page 389. It is obvious that the construction of

this statute and the respondent’s rights under it were

not and could not have been a matter for adjudication

in the trial court; and since this record is here by

appeal we are confined to the issues in that court.

ELEED THROUGH= POOR COPY

—_—_

We cannot treat the cause as an original proceeding

and determine the meaning and effect of the statute.’’

In the case of Simpson v. Stoddard, 173 Mo. 421, cited

by Appellants on this point is clearly distinguishable for

the statute there involved was a curative statute expressly

enacted for the purpose of operating retrospectively. Ex-

actly the opposite is true here as the statute itself limits

its application to matters arising prospectively.

Furthermore, Section 3 of the Missouri Code for Civil

Procedure quoted supra as to proceedings subsequent to

its effective date authorizes the trial court, in its discre-

tion, to follow the old procedure in any cas¢ pending prior

to the effective date of the new Code whenever, in the

opinion of such court, it ‘‘would not be feasible or would

work injustice.’’ Therefore, even if the case were reversed

and remanded, the trial court still would be authorized to

apply the old procedure in the exercise of this discretion.

Furthermore, Appellants have not shown they were

prejudiced by the application of the old Code with respect

to the joinder of parties and causes of action. In fact the

contrary appears from the opinion of the Supreme Court,

Moffett v. Commerce Trust Company, 193 S. W. (2d) 588,

wherein the Court says: (I. ¢. 591)

‘Judge Ridge sustained the demurrers on the sole

ground of misjoinder of parties, but the demurrers

also attacked the petition for misjoinder of alleged

causes of action and for failure to state a cause of

action. We think the reason assigned by the trial

court is sufficient, but his ruling can be sustained on

the other grounds mentioned. Hartvedt v. Harpst,

Mo. Sup. 173 8S. W. 2d 66, loc. cit. 68; Bushman v.

Barlow, 321 Mo. 1052, 15 8. W. 2d 329, 330.’’

Said Section 3 of the Missouri Code for Civil Procedure

was modeled on Rule 86 of the Federal Rules for Civil

Procedure. In the aspect now being considered we are

confident the two call for the same construction.

In the case of Doyle v. Loring, 107 F. (2d) 337, the

District Court dismissed the bill for lack of jurisdiction

over the subject matter and for lack of proper venue.

In affirming that ruling the United States Circuit Court of

Appeals for the 6th Circuit said: (1. ¢. 340)

‘*Appellants insist that the application of Rules

17(b), 4(d) (1), 4(d) (7), 12 (hb), BU SOA

following Section 723c, requires a result different

from that reached by the District Court. We are not

required to enter into a detailed discussion of the

rules. The Rules of Civil Procedure became effective

while the suit was pending and whether they should

have been applied was in the discretion of the Court

(Rule 86).’’

Application for certiorari to this Court in that case

was denied, 309 U. S. 686, 60 8. Ct. Rep. 808.

Application of the previous Rules of Procedure, under

similar conditions, have been approved by the Federal

Courts in construing the Federal Rules of Civil Procedure

which are the parent of Section 3 of the new Missouri Code.

In the case of City of El Paso v. West, 104 F. (2d) 9%,

the United States Circuit Court of Appeals for the Fifth

Circuit in a memorandum opinion on Motion for Rehearing

said: (1. ¢. 97)

‘‘Appeal is also made to the new rules of Civil

Procedure which abolished the old forms of action and

provide that there shall be but one.

‘*This case was filed and tried in the District Court

before the Rules of Civil Procedure existed. The

pleadings must be interpreted according to the laws

then obtaining.’’

In that case an application for certiorari to this Court was

denied, 308 U. 8. 587, 50 8. Ct. 111.

ELEED THROUGH= POOR COPY

In the case of Frigorifico Wilson De La Argentina v.

Weirton Steel Company, 31 Fed. Supp. 218, the United

States District Court for the Northern District of West

Virginia sustained a demurrer to the 5th declaration, say-

ing: (1. ¢. 219)

‘‘This declaration has been tested by the common law

rules of pleading, as applied in the Courts of West Vir-

ginia under the General Conformity Act, 28 U.S.C. A.,

Section 724, because said declaration was filed prior to

the adoption of the Federal Rules of Civil Procedure,

28 U.S. C. A., following Section 723c. See Rule 86. Of

course all future pleadings herein, filed by either party,

must conform to the new rules.’’

Upon appeal, that decision was affirmed by the United States

Cirenit Court of Appeals for the Fourth Circuit, but without

discussing the particular point, 62 F. (2d) 677.

Under both the Missouri and Federal authorities, the

Missouri Supreme Court committed no error in deciding

this case on appeal on the basis of the governing authority

being the old procedure under which the case was tried in

the court below. The point is not before this Court, but, if

it were, we submit there is no merit in Appellants’ conten-

tions and no substantial Federal question is presented which

could give this Court jurisdiction.

There was no error by Division 1 of the Supreme Court of

Missouri in denying the application of appellants for trans.

fer of the instant cause to the Supreme Court of Missouri

en banc; appellants could not claim such transfer as a matter

of right; and there was no violation of the equal protection

clause of Sect. 1 of Amendment XIV to the United States

Constitution.

The Supreme Court of Missouri en banc does not have

superintending control over a division of that court (Ap-

pellants’ assignment of error number 37). Appellants, in

their Jurisdictional Statement, say that ‘‘Said division I of

the Missouri Supreme Court is not the highest court in Mis.

souri. Appellants sought by said motion to transfer the

case to the Court En Banc, which is the highest State

Court.’’ (Citing cases.)

In one sense, there is a legal procedure under which, in

certain instances, a cause may be transferred to the Mis.

souri Supreme Court en banc from a division thereof, but

under the law and the facts in this case and for the purposes

of this appeal, Division 1 of the Missouri Supreme Court

was the highest court of the State in which a decision of this

ease could be had by the appellants. Under the law the

decision of Division 1 of that court against transfer of a

cause to the court en banc was as conclusive upon the appel-

lants as it was upon the court, as distinguished from the

two divisions in which the Judges thereof sit. The court

en banc cannot, on application to it, by the losing party, re-

view a decision of a division that no Federal question is

involved in the case, and refusing to transfer the case to the

court. Scheufler v. Mfg. Lumb. Underwriters, 349 Mo. 855,

163 S. W. 2, 749, 750; certiorari denied 317 U. 8S. 684, 87

ELEED THROUGH= POOR COPY

—

L. Ed. 548. State v. Duestrow, 137 Mo. 44, 91, 38 5S. W. 544,

39 S. W. 266, 1. c. 267, 268.

In State v. Duestrow, supra, the Supreme Court of Mis-

souri, en banc, aptly stated the issue of law (39 8. W. lL. «.

267) thus:

“The only question directly presented for our con-

sideration on this motion is whether the court, sitting in

banc, has power, under the amendment to the constitu-

tion adopted in 1890, to review the action of a division

of the court, and determine whether a federal question

is involved, and to order a transfer of a case to court in

banc after such division has unanimously decided that

there is no federal question in the case.’’

The Court, after referring to the constitutional provisions

involved, in Section 4 of the 1890 Amendment to the Mis-

souri State Constitution reading as follows:

‘When the judges of a division are equally divided in

opinion in a cause, or where a judge of a division dis-

sents from the opinion therein, or where a federal ques-

tion is involved, the cause, on the application of the los-

ing party, shall be transferred to the court for its de-

cision; or, where a division in which a cause is pending

shall so order, the cause shall be transferred to the

court for its decision.’’,

proceeds with its opinion thus:

‘‘Does this section give to the court in banc the power

claimed by defendant under his motion? We are of the

opinion that it does not. It cannot be said that this

section gives to the supreme court superintending con.

trol over a division.”’ * *° °

‘The existence or nonexistence of a federal question

in a cause may sometimes be in doubt, and judges may

differ in their opinion on the question; yet a division of

the court is fully as competent to determine that ques-

tion as the more important one involving the merits of

the case, in which the power is not, and, indeed, cannot

be, disputed. Its unanimous judgment on incidental

questions is also conclusive. In this case division 2

heard the appeal on its merits. The application to

transfer was properly made to it. The right to a trans.

fer depended upon whether a federal question was in-

volved. That was a question for that division to settle.

It did so, by finding that no federal question was in-

volved, or, as the application was denied, we must pre-

sume it so found. The court sitting in banc is given no

power to review that decision. Defendant’s motion is

overruled.’’

In Scheufler v. Mfg. Lumb. Underwriters, supra, the Su-

preme Court of Missouri en banc, in holding that the con-

stitutional amendment of 1890 does not give the Supreme

Court en banc superintending control of a division of the

court and that the court en banc cannot compel the transfer

of a cause to the court en banc from a division thereof, says:

‘*Ever since the decision of State v. Duestrow, 137

Mo. 44, 91, 38 SW 554, 39 SW 266 in 1896, it has been

the settled law of this state that such motions must be

filed in whichever of the two Divisions of this court has

decided the case; and that the court en banc cannot com-

pel a transfer of the cause. * * *°

‘*The Duestrow case, (137 Mo. loc. cit. 95, 38 S.W.

554, 39 SW. loc. cit. 268) squarely holds that Sec. 4 of

the Amendment does not give the court en banc super-

intending control over a Division.

‘*The Amendment of 1890 was adopted to expedite

the work of the court by creating two divisions of con-

current jurisdiction, each with the separate power to

adjudicate causes coming to the court; and with the

further power to determine when causes before it, shall

be transferred to the court en banc under Sec. 4 of the

Amendment.’’ (Emphasis added.)

As noted above, this Court denied certiorari in the last cited

case.

—

Since the above decisions the State of Missouri in 1945

adopted a new Constitution but we submit the comparisons

here made will show that the slight change in phraseology

in the new Constitution simply make for conciseness and

clarity and that the decisions cited herein are fully as ap-

plicable to the new State Constitution as to the old.

The counter part of Sec. 4 of the Amendment of 1890

quoted above is Section 9 of Article V of the Missouri Con-

stitution of 1945. It reads:

“Sec. 9. Transfer of Causes to Supreme Court in

Banc.—A cause in the supreme court shall be trans-

ferred to the court in bane when the members of a di-

vision are equally divided in opinion, or when the di-

vision shall so order, or on application of the losing

party when a member of the division dissents from the

opinion therein, or a federal question is involved, or

pursuant to supreme court rule.”’

A learned annotator of the new Constitution comments

that except for the concluding words ‘‘or pursuant to su-

preme court rule’’, the only substantial difference between

Sec. 4 of the Amendment of 1890 and the last quoted new

Section arises from the change in position within the section

of the phrase ‘‘on application of the losing party.’’

The constitutional provisions with respect to the jurisdic-

tion of the State court prior to the adoption of the 1945 Con-

stitution were in a part of Section 12, Article VI, Missouri

Constitution, 1875, which primarily created the St. Louis

Circuit Court of Appeals, but also stated the jurisdiction of

the State Supreme Court, and Sections 3 and 5 of the 1884

Amendments to the 1875 Constitution. Such pertinent pro-

visions read :

‘See. 12. St. Louis Court of Appeals—jurisdiction—

appeals to Supreme Court—* * * Appeals shall lie

from the decisions of the St. Louis Court of Appeals to

the Supreme Court, and writs of error may issue from

the Supreme Court to said court in the following cases

only; In all cases where the amount in dispute, ex-

clusive of costs, exceeds the sum of two thousand five

hundred dollars; in cases involving the construction

of the Constitution of the United States or of this State;

in cases where the validity of a treaty or statute of or

authority exercised under the United States is drawn in

question; in cases involving the construction of the

revenue laws of this State, or the title to any office

under this State; in cases involving title to real estate;

in cases where a county or other political subdivision

of the State or any State officer is a party, and in all

cases of felony.

‘Sec. 3, Amdt. 1884, provided, among other things,

that ‘the General Assembly shall have power by law

the jurisdiction of the court of appeals. * ° °

‘*Sec. 5 Amdt. of 1884 reads as follows:

Sec. 5. Supreme Court, exclusive appellate juris-

diction of—In all causes or proceedings reviewable by

the Supreme Court, writs of error shall run from the

Supreme Court directly to the cireuit courts and to

courts having the jurisdiction pertaining to circuit

courts, and in all such causes or proceedings, appeals

shall lie from such trial courts directly to the Supreme

Court, and the Supreme Court shall have exclusive

jurisdiction of such writs of error and appeals, and

shall in all such cases exclusively exercise superintend-

ing control over such trial courts.’’

The corresponding provisions of the 1945 Constitution

are found in Section 3 of Article V thereof:

‘*Sece. 3. Jurisdiction of the Supreme Court.—The

supreme court shall have exclusive appellate juris-

diction in all cases involving the construction of the

Constitution of the United States or of this state, the

validity of a treaty or statute of the United States, or

any authority exercised under the laws of the United

E LEED THROUGH= POOR COPY

States, the construction of the revenue laws of this

state, the title to any office under this state, the title

to real estate, in all civil cases where the state or any

county or other political subdivision of the state or

any state officer as such is a party, in all cases of

felony, in other classes of cases provided by law, and

until otherwise provided by law, in all cases where the

amount in dispute, exclusive of costs, exceeds the sum

of seventy-five hundred dollars.’’

We think there is significance in the identity of the words

drawn in question’’, with respect to the validity of a

eaty or statute of the United States in Section 12, Article

‘I, Constitution 1875, and in Title 28, U. S. C., Sec. 344

Sec, 237, Judicial Code, amended).

It is also to be noted that the Supreme Court of Missouri

olds that the word ‘‘involved’’ as used in the 1875 Con-

titution in fixing the appeilate jurisdiction of the Missouri

jupreme Court ‘‘implied that a constitutional question

vag raised in and submitted to the trial court, and that

uch court had the opportunity to pass upon it.’’ Aufder-

ide v. Ice & Fuel Co., 319 Mo. 337, 48. W. 2d 776, |. ¢. 799 ;

Bennett v. Railway Co., 105 Mo. 642, 644, 16 8. W. 947, 948.

This was in passing upon the procedural steps necessary

10 place jurisdiction in the Supreme Court of the State,

and the only application here made is that when that juris-

liction has been acquired, and appellants claim that refusal

to transfer the cause from the division to the court en bane

violated a Federal right, the question being timely raised,

the division of the court must determine whether an alleged

Federal question is in fact involved in the record by proper

procedure and then whether the alleged question is Federal

in any sense.

In either case, under the cited decisions of the Missouri

Supreme Court the question of transfer from division to

the court en banc is strictly one of procedure of State law.

—

In State v. Duestrow, supra, cited and followed ever since

1896, where the application to transfer to the court en banc

for an alleged Federal question was denied the Supreme

Court en banc held that the unanimous decision of the three

judges of Division 2 was final. Division 2 of the Supreme

Court was ‘‘the highest court of a State in which a decision

in the suit could be had.” 28 U. S. C. Sec. 344 (See. 237,

Jud. Code, Amended). In the instant case, the like final

decision under the authorities cited was not only made by

the unanimous concurrence of the four judges of Division 1

of the court, but it likewise was the judgment of a majority

of the seven members of the entire court. Appellants

could have no right under the Federal Constitution to

control the law of Missouri as to what should be the highest |

court of the State in which a decision of the suit could be

had. There could be no denial of equal protection of the

law to appellants, because the supreme law of the State

of Missouri vests in a division of its Supreme Court the

judicial discretion to determine which cases decided in

the division of the court involved a Federal question and

which cases actually involved no such question. It might

as well be argued that there was a denial of equal protec-

tion by the vesting of power in an appellate court to affirm

or reverse cases on appeal.

In A. T. d 8. F. R. Co. v. Railroad Com., 283 U. 8. 380,

75 L. Ed. 1128, this Court, through Chief Justice Hughes,

said:

‘“*The decision of the state court is conclusive so far

as the constitution and laws of the state are con-

cerned.’’

In Yazoo etc. R. Co. v. Mullins, 249 U. 8. 351, 63 L. Ed.

754, this Court, through Mr. Justice Brandeis, said:

‘*Whether the case comes from a state court or a

Federal court, this court will, for the purpose of de-

croecen THROLIGH=] POOR COPY

termining whether the error found may have been

prejudicial, examine the whole record; state questions

being left to the decision of the state court in cases

coming here from those courts.’’

In Waters-Pierce Oil Co. v. Texas, 212 U. 8. 86, 53 L. Ed.

417, this Court held:

‘‘The jurisdiction of this court to review the pro-

ceedings of the state courts, as we have had frequent

oceasion to declare, is not that of a general reviewing

court in error but is limited to the specific instances

of denials of Federal rights, whether those pertain-

ing to the constitutionality of Federal or state statutes,

or to certain rights, immunities, and privileges of

Federal origin, specially set up in the state court, and

denied by the rulings and judgment of that court.’’

In Missouri ex rel. v. Public Service Com., 273 U. S. 126,

71 L. Ed. 575, on error to the Supreme Court of Missouri

to review a judgment reversing the Circuit Court of Cole

County, after the entry of the judgment below a statute

of Missouri was enacted fixing a greater clearance for the

location of a railroad track beneath the street than was

involved in the litigation in the State court. This Court,

after stating that:

‘‘Ordinarily this court on writ of error to a state

court considers only federal questions and does not

review questions of state law.’’

further held that though its appellate powers were not

thus restricted when questions of State law arising after

the decision below are presented in this Court, yet:

“‘The meaning and effect of the state statute now

in question are primarily for the determination of the

state court. While this court may decide these ques-

tions, it is not obliged to do so, and in view of its

nature, we deem it appropriate to refer the determina-

tion to the state court. Dorchy v. Kansas, supra, 290,

291 (68 L. Ed. 689, 690, 44 Sup. Ct. Rep. 323). In

order that the state court may be free to consider the

question and make proper disposition of it, the judg.

ment below should be set aside, * *°

In U. S. v. Pink, 315 U. 8. 203, 86 L. Ed. 796, 62 S. Ct.

Rep. 552, this Court, through Mr. Justice Douglas, held

that:

‘“e * * we are not free to inquire as petitioner sug-

gests, into the propriety under New York practice of

grounding the motion for summary judgment on the

record in the Moscow Case. That is distinctly a ques-

tion of State law on which New York has the last

word.’’ (Emphasis added.)

The records show that “most if not all” of the questions

referred to by the Missouri Supreme Court on page 592

of its opinion in 193 8. W. (2d) 588, and also many other

questions raised by appellants on this appeal, have been

decided adversely to appellants by courts of competent

jurisdiction in suits brought by appellants or in which they

actively participated, and that appellants have not only

had their day in court but their months and years.

In several places in appellants’ Jurisdictional Statement,

they seemingly criticize the opinion of the Supreme Court

in 193 S. W. (2d) 588, on account of the following recital

appearing therein:

‘‘They (the appellants) have not only had their day

in court, but their months and years.’’

This statement follows the following recital therein (p.

592):

‘* Appellants make many other assignments of error;

assailing the constitutionally of Missouri statutes

relating to partnership estates, and the probate laws

of both Missouri and Kansas; ask us to declare void

certain decisions of the Supreme Court of Kansas;

invoke the treaty between this country and France in

1803 and the ‘due process’ and other provisions of

the State and Federal Constitutions. Most if not all

these questions have been decided adversely to appel-

lants by courts of competent jurisdiction in suits

brought by appellants or in which they actively par-

ticipated as defendants. Moffett v. Moffett, 131 Kan.

582, 292 Pac. 947, 77 A. L. R. 294; Clark v. Andrews,

136 Kan. 23, 12 P. 2d 294; Clark v. Moffett, 136

Kan. 711, 18 P. 2d 555; Id. 290 U. S. 602, 54 S. Ct.

227, 78 L. Ed. 528; Moffett v. Robbins, D. C., 14 F.

Supp. 602; Moffett v. Robbins, 10 Cir., 81 F. 2d. 431,

Id. 298 U. S. 675, 56 S. Ct. 940, 80 L. Ed. 1397.

Appellants have not been denied due process. They

have not only had their day in court, but their months

and years.’’

In the immediately following, and concluding paragraph,

in referring to the above mentioned assignments of error,

the Supreme Court said (p. 592) :

‘None of these assignments is germane to the

question of whether the fifth amended petition contains

a misjoinder of parties plaintiffs or fails to state a

joint cause of action. We hold that the judgment is

correct in form and in accordance with law and it is

therefore affirmed.’’

It is thus evident that the Missouri Supreme Court

deemed these assignments as having no significance in the

light of the actual issues involved before it, and that the

only constitutional question attempted to be passed upon,

or which was passed upon by the court, was the contention

that Section 948 violated the provisions of Section 10 of

Article I of the Constitution of the United States relating

to bills of attainder, As will elsewhere appear herein, the

Missouri Supreme Court properly held that this contention

was unsubstantial and frivolous.

The opinions in Moffett v. Clark, 131 Kan. 582 (rendered

November 8, 1930), Clark v. Moffett, 136 Kan. 711

(rendered January 28, 1933), and Clark v. Andrews, 136

Kan. 923, are all expressly referred to in the Fifth Amended

Petition, and by reason of the pleading thereof, under the

provisions of Section 958, R. S. Mo. 1939, reading as follows:

**See. 958.—In every action or proceeding wherein

the law of another state of the United States of

America is pleaded, the courts of this state shall take

judicial notice of the public statutes and judicial deci-

sions of said state. R. S. 1929, Sec. 806.’’

the Missouri Supreme Court took judicial notice of these

opinions, as well as of the laws, statutes and decisions of

the State of Kansas. The record (*507-514) (°521-535)

in the Howard fee case (345 Mo. 741, 137 S. W. 2d 507)

shows that the opinions in Moffett v. Robbins, 14 Fed.

Supp. 602, and Moffett v. Robbins, 81 F. (2d) 431, were

offered in evidence therein, and under the following pro-

nouncements in the case of Knorp v. Thompson, 352 Mo.

44, |. ce. 52, 175 S. W. (2d) 889, 1. ¢. 894:

‘‘Of course, a court can judicially notice its own

records, and courts, when justice requires, should and

do, in deciding a case, consider the records of other

cases, as‘* * * where the interests of the public in

ascertaining the truth are of paramount importance,

as also in cases where the court is seeking to determine

what is a reasonable exercise of its discretion, or

whether the present proceeding is merely a moot one.

And ‘there may be cases so closely interwoven, or

so clearly interdependent as to invoke’ a rule of

judicial notice in one suit of the proceedings in another

suit.’ ’’

the Supreme Court of Missouri was entitled to take judicial

notice of these two opinions,

——

The records of this Court will show that on or about June

93, 1933, Grace Torrance Clark as the Kansas Administra-

trix of the Thomas S. Moffett Estate, and Louise McGrew

Moffett as sole beneficiary of Thomas S. Moffett, filed in

this Court, petition for writ of certiorari to review the

case of Clark v. Moffett, 136 Kan. 711; that said petition

was docketed therein as cause No. 181, and that this Court

on October 9, 1933, denied certiorari therein (290 U. 8.

642, 78 L. Ed. 558), and on December 11, 1933, this Court

denied petitioners leave to file petition for rehearing (290

U. 8. 602, 78 L. Ed. 528).

The records of this Court will show that on or about

April 11, 1936, Louise McGrew Moffett, as Executrix of

the Estate of Thomas S. Moffett, deceased, and Louise

McGrew Moffett, individually, filed in this Court, petition

for writ of certiorari to review the case of Moffett v.

Robbins, 81 F. (2d) 431; that said petition was docketed

therein as cause No. 918, and that this petition was denied

on May 18, 1936 (298 U. S. 675, 80 L. Ed. 1379).

We have compiled and are placing in the Appendix hereto,

pages 152-157 inclusive, the respective Specifications of

Error set forth in these petitions, respectively.

The Specifications of Error will clearly disclose that

most, if not all of the questions attempted to be raised in

the instant case were previously raised in the Supreme

Court of Kansas, and in the Tenth Cireuit Court of Appeals,

and were brought to the express attention of the United

States Supreme Court in Petitions for certiorari. Refer-

ence will be further made to these Specifications in other

parts of this

Statement

The records of this Court in said cause No. 181 will also

show the following at the respective pages of the record

in said cause set opposite thereto:

1. Findings of fact and conclusions of law in the Harper

County District Court, pages 531 (484) to 572 (525), which

findings included Commerce Trust Company’s Exhibit No.

8, which is referred to in Finding No. 27, page 545 (498), as

provided in the following recital in Finding No. 27:

‘*A true copy of said report is attached hereto as

a part of the findings of the Court.’’

Said Exhibit No. 8 attached thereto appears in full on pages

572 (525) to 594 (548).

2. Plaintiffs’ motion to change, modify, strike out, and

make additional findings of fact and conclusions of law,

pages 595 (549) to 616 (570).

3. Journal entry of the Harper County District Court,

pages 624 (578) to 629 (583).

Journal entry of judgment of the Harper County

District Court, pages 629 (583) to 660 (614).

4. Finding of fact No. 24 appears beginning at 543 (496).

5. Plaintiffs’ requested finding No. 13 appears pages

601-603 (555-557).

6. Stipulation concerning accounting, pages 160-161 (126-

127).

In giving the above citations to the record, the first

figi.res mentioned are the numbering given to the record

by the Clerk of the Supreme Court of the United States,

and the figures second appearing are the pages of the

record in the transcript filed in the Supreme Court of

Kansas,

—_—

Under its decisions hereinafter referred to, the United

States Supreme Court will take judicial notice of its records

in connection with these certiorari proceedings.

We particularly refer to the court’s findings of fact and

conclusions of law, and the findings of fact and conclusions

of law requested by the then plaintiffs, now appellants, in

the Harper County, Kansas, District Court proceedings,

and the judgment entry of that court, appearing respec-

tively on the above pages in the Abstract of the Record

filed in this Court in the aforesaid case No. 181. In other

parts of this Statement we will comment concerning some

of the recitals therein.

For the convenience of the Court, we are setting forth in

an Appendix attached hereto, on pages 110-119, inclusive

thereof, the opinion of the Supreme Court in the case of

Moffett v. Moffett, 131 Kan. 582, and on pages 119-133

thereof, the opinion of the same Court in the case of Clark

v. Moffett, 136 Kan. 711, and on pages 134-146 thereof,

inclusive, the opinon in the case of Moffett v. Robbins, 81

F. (2d) 431. Under its decisions hereinafter referred to,

the United States Supreme Court will take judicial notice

of its records in connection with these certiorari pro-

ceedings.

The Supreme Court of Missouri would likewise have been

entitled to take judicial notice of the case of Moffett v.

Moffett, 131 Kan. 546, 292 Pac. 942, mentioned and set

forth above in Clark v. Moffett, 136 Kan. 711, on account

of the following recital therein (1. c. 713) :

“The will of John Moffett had been construed as it

affected some of the beneficiaries, both by this court

(Moffett v. Moffett, 131 Kan. 546, 292 Pac. 942) and

by the Supreme Court of Missouri (Zombro v. Moffett

(Mo.), 44 S. W. 2d 149).”’

ooo

The Supreme Court of the United States would likewise

be entitled to take judicial notice of the case of Moffett vy,

Moffett, 131 Kan. 546, because its records show that on or

about February 2, 1931, Louise McGrew Moffett and Grace

Torrance Clark, Administratrix, filed in this Court petition

for writ of certiorari to review the decision of the Supreme

Court of Kansas in the last named case; that said cause

was docketed therein as cause No. 700, and that therein the

petitioners asserted that the judgment denied Thomas §,

Moffett the equal protection of the laws of the State of

Kansas, in violation of Section 1 of the Fourteenth Amend.

ment to the Constitution of the United States, and that by

such decision, T. S. Moffett was deprived of the full enjoy.

ment and possession of property ‘‘in violation of the com-

mand of Section 1 of the Fourteenth Amendment to the

Constitution of the United States.’’

The petition in this case contains the following recital:

“*T. S. Moffett, one of the parties against whom the

suit was instituted in the District Court of Comanche

County, Kansas, and who was the appellant in the

Supreme Court of the State of Kansas in the case

sought to be reviewed herein, died on December 22,

1930, af‘er judgment and after his motion for a rehear-

ing was filed and denied.

‘‘Thereafter, said cause was duly revived in the

names of your petitioners in the Supreme Court of the

State of Kansas, to-wit Louise McGrew Moffett, widow

and sole beneficiary under the will of T. S. Moffett, and

Grace Torrance Clark, administratrix with the will

annexed in Kansas of the estate of T. S. Moffett, by

substituting them as appellants, in lieu of the said

T. S. Moffett, during the judgment term.”’

The records of this Court show that this Court, on March

9, 1931, denied certiorari (283 U. S. 825, 827, 75 L. Ed. 1440).

Elsewhere in this Statement further reference will be

made to the issues in the District Court and in the Kansas

——— CUCU ee et we

—

Supreme Court and in the United States Supreme Court in

said case, and reference will also be made to the application

thereof to certain allegations in the Fifth Amended

Petition.

In another section of this Statement, reference will be

made to the questions raised by appellants in these three

certiorari proceedings, and therefrom it will, we think, ex-

ly appear that before this Court appellants raised

many of the identical questions now raised by them in their

Jurisdictional Statement, and it will, we think, appear

therefrom that ‘‘most if not all’’ of the questions now

raised were raised by them, and decided adversely to them,

and it is to be presumed that appellants raised in the cer-

tiorari proceedings, all questions which they deemed of

any significance.

The limitation upon our time will prevent a thorough

review of what appears in the above mentioned opinions of

the Supreme Court of Kansas and in the above mentioned

cases of Moffett v. Robbins, 14 Fed. Supp. 602, and 81

F. (2d) 431. However, in view of appellants’ present con-

tention, we invite consideration of all these cases, and par-

ticularly the case of Moffett v. Robbins, 81 F. (2d) 431,

because therein Judge Bratton reviewed a petition of the

same appellants, prepared by the same lawyers, raising

many of the questions which are now attempted to be raised

by appellants’ attorneys. This case involved a proceeding

instituted by Louise MeGrew Moffett individually and as

Executrix of the Estate of Thomas 8. Moffett, deceased,

against R. O. Robbins, Ancillary Administrator in Kansas

With the Will Annexed of the Estate of J ohn Moffett, De-

ceased (charging conspiracy between Helen Moffett, said

R. O. Robbins, Commerce Trust Company, and others,

the alleged nature of which is set forth in said opinion

(L ¢. 434), to enjoin the enforcement of the judgment

——

rendered by the District Court of Harper County, Kansas,

which was affirmed by the Supreme Court of Kansas in

136 Kan. 711. This opinion is particularly important be-

cause it sets forth in great detail, contentions therein raised

by the appellants and disposes of all of the same with un-

usual directness and clarity. The Court disposed of, ad-

versely to appellants, many of the contentions now raised

by appellants. We shall later refer to some of the recitals

therein, but in view of the present contention of the appel-

lants that there was no adversary trial in the Harper

County suit, we now reproduce what Judge Bratton said

reference to that contention made in the bill filed by the

present appellants in the District Court of Kansas, as

follows (Moffett v. Robbins, 81 F. (2d) 431, 1. ¢. 437):

**(13) The judgment is assailed on the further

ground that there was no adversary trial. Louise Me-

Grew Moffett, as sole beneficiary of the estate of

Thomas S. Moffett, Grace Torrance Clark as adminis-

tratrix with the will annexed of that estate and ad-

ministering the estate of Moffett Bros. in Kansas, and

all others having any interest in the estate of the part-

nership, were parties to the action. The purpose of the

proceeding was an accounting and partition; the issues

were formed and the crux of the litigation concerned

itself very largely with the asserted claim that the part-

nership was indebted to the estate of John Moffett.

Louise McGrew Moffett and Grace Torrance Clark

together waged vigorous but unsuccessful opposition

to that claim. Counsel who represented them were

paid $3,900 from the partnership funds as compensa-

tion for their service. Grace Torrance Clark made

such payment. The trial consumed several days; all

questions were seemingly considered thoroughly; ex-

tended findings of facts and conclusions of law were

made dealing with every feature of the complicated

situation; and an exhaustive judgment was entered.

In these circumstances, the mere allegation that there

ELEED THROUGH POOR COPY

was no adversary trial is a conclusion which the record

affirmatively disproves.”’

In addition to the foregoing cases, we are bringing to the

attention of the United States Supreme Court, the following

from the opinion in the case of Clark v. Moffett, 136 Kan.

711, |. ¢. 713:

“The action came to this court on the pleadings

(Moffett vs. Moffett, 131 Kan. 582 292 Pac. 947), where

it was determined that the accounting prayed for was

proper.

‘‘When the action went back to the trial court,

broadly speaking, the only controversy between the

parties was with respect to the accounting. The will

of John Moffett had been construed as it affected some

of the beneficiaries, both by this court (Moffett vs.

Moffett, 131 Kan. 546, 292 Pac. 942) and by the supreme

court of Missouri (Zombro v. Moffett, (Mo.) 44 S. W.

2d 149). There was no longer any controversy among

the parties as to the share or interest which each of

them should receive in the land to be partitioned except

as the same might be modified by the accounting.

‘‘Broadly speaking, there were but three things to

be determined in the accounting. First, were Moffett

Brothers indebted to John Moffett individually at the

time of his death, and if so, in what sum? Second,

was Thomas S. Moffett indebted to the partnership

of Moffett Brothers, and if so, in what sum? and third,

was the Moffett Brothers Cattle, Land and Lumber

Company indebted to Moffett Brothers, and if so, in

what sum?

In view of the many unwarranted questions now raised

by appellants, we think it not amiss to further quote from

Clark vs. Moffett, 136 Kan. 711, l.c. 714, as follows:

‘“‘This controversy, so comparatively simple in its

broader aspects, as above outlined, has been compli-

cated by the manner in which the litigation has been

sonducted by injecting into it a number of questions

relating to practice or procedure and technical ques.

tions, many of which have little or no substantial merit,

with the result that the parties have presented to this

court for its analysis and its consideration 1740 pages

of printed abstracts and briefs.’’

That the appellants in that case did raise therein many

of the questions now sought to be raised in the instant pro-

ceeding, is readily apparent by the following statements

appearing in Clark v. Moffett, 136 Kan. 711, 1. c. 720:

‘* Appellants contend that the Commerce Trust Com-

pany is without capacity to represent the Moffett Broth-

ers partnership in this action. When the case was in

this court before, one of the points determined was that

it was proper for the trial court to permit the Com-

merce Trust Company to intervene in this action in

its capacity as administrator of the partnership estate

of Moffett Brothers. Ignoring the former determina-

tion of this question, appellants present two reasons

in support of their contention. First, that the appoint-

ment was made by one who assumed to act as special

judge, or judge pro tem., of the probate court of Jack-

son County, Missouri, who was not so chosen in ac-

cordance with the constitution and statutes of Mis-

souri, therefore his order making the appointment

is void. The trial court found that his selection was

made on accordance with the constitution and statutes

of Missouri, as interpreted by the supreme court of

that state. The finding appears to be sound. But,

passing that, he was there acting as judge of the pro-

bate court and did make the appointment. No appeal

has been taken from that order. The Commerce Trust

Company bas been acting under the appointment since

December 28, 1928. He was at least a judge de facto.

The regularity of his appointment, or his acts as

judge, cannot be collaterally attacked in this proceed-

ing. (Briggs v. Voss, 73 Kan. 418, 85 Pac. 571; Keys

v. Keys, 83 Kan. 92, 109 Pac. 985.) Sevond, it is ar-

gued that even if the appointment of the Commerce

ELEED THROUGH= POOR COPY

Trust Company in that capacity was made, it was

for Missouri only and did not authorize it to appear in

Kansas. Our statute (R. S. 22-1308) authorizes an

administrator of another state to sue or be sued in this

state.’’

In that case the Supreme Court of Kansas (I. c. 723)

Iso passed on the contention of the then plaintiffs, now

ppellants, that they did not have a fair trial therein, by

he use of the following language:

‘Finally it is contended plaintiffs did not have a

fair trial, and that this is indicated by rulings and

remarks of the court as the trial progressed. We have

carefully examined the record and all counsel have

said on this point and find the contention to be devoid

of merit.’’

Appellants now contend that there was no adversary

rial in this case. In view of this contention, what is said

by the Kansas Supreme Court in Clark v. Moffett, 136

Kan. |. c. 724, we think clearly disproves and refutes this

contention :

‘“‘The third item is the one around which the battle

of the trial raged. Much feeling was displayed. What

caused this, or who is to blame for it, we shall not

pause to consider, if, indeed, the record discloses.

Perhaps because of it many contentions were made

which were not well founded. Some tactics were

indulged in, the obvious purposes of which were to

impede rather than to aid the orderly administration

of justice. With this attitude prevalent it is fortunate

that the trial was before an able and experienced trial

judge who could winnow the wheat from the chaff.

While doing so the court gave the parties ample time

for trial and a fair opportunity in the introduction of

evidence. The judgment is fully sustained by the

evidence, and, as we view it, in its main features, at

least, is the only one which properly could have been

reached from the evidence.’’

The Supreme Court of the United States will also take

judicial notice of the following recital in Clark vs. Moffett

136 Kan. 711, 1. c. 721, 722:

‘*Thereafter Louise McGrew Moffett filed a petition

for removal to the federal court of what was alleged

to be a separable controversy between herself and

the defendants Renwick J. Moffett and Joseph W.

Moffett with respect to the indebtedness of the estate

of Moffett Brothers to the estate of John Moffett, and

alleging diverse citizenship. When this was presented

to the trial court it refused to order a removal of the

cause. A transcript of the proceedings was duly filed

in the United States district court. That court, after

a hearing, ordered it to be remanded to the state court.

There was, of course, no separable controversy between

Louise McGrew Moffett on the one hand and Renwick

J. Moffett and Joseph W. Moffett on the other with

respect to the indebtednes: of Moffett Brothers to the

estate of John Moffett.’’

The court wili also take judicial notice that the Supreme

Court of Kansas reviewed, considered and passed upon

the contention that there had been no revivor of the Harper

County judgment, and expressly ruled that the cause was

properly revived (1. c. 721).

Under its decisions, had it been necessary to do so, the

Missouri Supreme Court would have been entitled to take

judicial notice of its opinion in the case of Zombro v.

Moffett, 44 S. W. (2d) 149, above referred to.

It is also interesting to note that in 193 S. W. (2d), 588,

which contains Judge Clark’s opinion in ‘he instant case,

the West Publishing Company in publishixg same, places

immediately following the syllabi, the following recital:

** See, also, 237 M. A. 375, 162 S. W. (2d) 591.”’

We assume that this was done because of the following

language appearing on page 591 of Judge Clark’s opinion:

‘The withdrawal of paragraph 45, which related to

a suit brought by respondent Kopp against Mrs.

ELEED THROUGH= POOR COPY

_ —

Moffett, in no way affected the point made in the

demurrers as to misjoinder of parties plaintiff or

failure to state a cause of action.’’

The case mentioned by West Publishing Company is the

identical case about which complaint was made in with-

drawn paragraph 45.

In the light of the foregoing, it seems to us that there

is no possible justification for the contentions made by

appellants that Judge Clark in his opinion erroneously

stated that ‘‘They have not only had their day in court,

but their months and years.’’

Appellees Helen Weede and Commerce Trust Company,

as respondents in the instant case in the Missouri Supreme

Court filed therein for the convenience of the Court:

‘Extracts from Appellants’ Abstract of the Record

in Cause No. 36089 in the Supreme Court of Missouri,

entitled ‘In re Moffett Brothers Partnership Estate,’

known as the Howard Fee Case (the opinion in which

is reported in 345 Mo. 741, 137 S. W. 2nd, 907), pre-

pared and furnished by respondents, Helen Weede and

Commerce Trust Company’”’

explaining the reasons therefor by the following recital

appearing on the cover page thereof:

‘‘(This photographic reproduction of said extracts

is furnished because said Respondents have been in-

formed that the files of the Court contain only one

copy of Appellants’ Abstract of the Record in said

last named cause; and this compilation is furnished

solely for the convenience of the Court.)’’

and further explaining by the following recital appearing

thereon:

‘“‘This compilation contains the following pages of

said appellants’ Abstract of the Record, reproduced

in page sequence: 116 to 254; 337 to 363; 701 to 733;

755; 756; 879 to 881; 998 to 1026; 1071 to 1086; 1095

to 1098; 1132 to 1135; 1142; 1146; 1147; 1150; 1152.

The Exhibits bound in the original Abstract between

pages 224 and 225, appear in this compilation between

pages 225 and 226.’’

This was done because the Supreme Court of Missouri

was entitled to take judicial notice of the record in the

Howard Fee case (345 Mo. 741), above referred to, which

was a companion case, and expressly brought to the atten-

tion of the Missouri Supreme Court by appellants in

numerous places in their Fifth Amended Petition, and

directly raised again on appeal, and by their Jurisdictional

Statement the action of the Supreme Court therein con-

cerning same is now made the basis of further alleged

grounds of complaint.

These abstracts from the record contain, on the follow-

ing pages, the following, all of which were offered and re-

ceived in evidence in the Howard Fee case:

1. Petition ror an AccountTine anv Partition, filed

by Thomas S. Moffett in the Harper County District

Court (*113 to *122, both inclusive).

2. AmMenpep Seperate Repity or Grace Torrance

Cuiark (*701 to *731, both inclusive).

3. Amenpep Separate Repity or Lovise McGrew

Morrertr (*731 to *733, both inclusive).

4. Sripvtation in the Harper County suit signed by

all of the parties plaintiff and defendant (*755, °756).

5. JournaL Entry or JupGMent in said cause, in-

eluding Findings of Fact and Conclusions of Law (and

also including Exhibit 8) (*116 to *253, both inclusive).

6. Morton to Cuanae, Mooiry, Strike Out anp Make

AppitionaL Finpinos or Fact anp Conciusions or Law,

filed by plaintiffs on January 12, 1932 (*337 to °361,

both inclusive).

We are also reproducing in the Appendix, on pages 146-

151 inclusive, the opinion of Judge Hopkins of the United

ELEED THROUGH=— POOR COPY

—

States District Court of Kansas in the case of Moffett v.

Robbins, 14 Fed. Supp. 602.

Paragraph 25 of the Fifth Amended Petition (236 to 240),

among other things, refers to the partnership estates

of Andrews, Lewis and Moffett, in which Thomas S. Moffett

had a one-third interest, and of Moffett Brothers and

Andrews, in which said Thomas S. Moffett had a one-third

interest. Thomas 8. Moffett, after the death of John

Moffett, took over the administration of these two partner-

ship estates in Kansas with the consent of said Andrews,

the then remaining partner. Shortly after the death of

Thomas 8S. Moffett, Grace Torrance Clark secured an order

in the Probate Court of Wyandotte County directing her to

take possession of these two partnership estates and filed

bond. Shortly thereafter, said Andrews filed a motion in

the Probate Court of Wyandotte County, in which he asked

leave to have the Court modify its order appointing Mrs.

Clark. On the 30th day of March, 1931, the Court entered

its order modifying its order so appointing her. The effect

of this order was to withdraw from Mrs. Clark the right to

administer these two partnership estates. The order was

appealed to the District Court of Wyandotte County, which

reversed the decision of the Probate Court. The case of

Clark v. Andrews, 136 Kan. 23, 13 Pac. (2d) 294, contains

the opinion on the appeal from the District Court of Wyan-

dotte County. The Supreme Court in that case reversed

the judgment of the District Court, with directions to

sustain the order of the Probate Court from which the

appeal to the District Court was taken.

These last named facts are taken from recitals appearing

in the opinion in the case of Clark v. Andrews, supra, as

well as from recitals in said Paragraph 25.

In Paragraph 25 of the Fifth Amended Petition, ap-

pellants seek to challenge the correctness of the above

—_

mentioned opinion of the Supreme Court. As we construe

paragraph 25, they also seek to recover damages on account

of the appointment of said Andrews.

We shall not lengthen this Statement by reviewing

the case of Clark v. Andrews, which covers almost eight

pages, but shall content ourselves with reproducing the

syllabi of the court in the opinion filed on July 9, 1932,

which, as this Court knows, has peculiar significance under

the constitution and laws of the State of Kansas:

‘*1. A probate court has authority at a subsequent

term to which a matter has been continued to enter an

order modifying its original order entered at the prior

term appointing an administrator of partnership

estates.

‘*2. Where a partnership composed of three persons

is dissolved by the death of one, and administration of

the partnership estate is commenced by one of the sur-

vivors with the consent of his cosurvivor and the

administering partner dies before such administra-

tion is completed, the remaining partner upon com-

plying with the provisions of R. S. 22-405 is entitled

to administer upon the partnership assets as against

the administratrix of the administering partner.

‘*3. The provisions of R. S. 22-328 that letters

testamentary and of administration shall in no case be

granted to a nonresident of this state will not be applied

to defeat the right of a nonresident surviving partner

to administer upon the assets of the partnership.’’

It thus appears from this opinion that the Supreme Court

of Kansas, which is the court of last resort in the State of

Kansas, expressly decided against all these contentions of

appellants.

Reference to this matter is incorporated herein because

the case of Clark v. Andrews is one of the cases mentioned

on page 592 of the opinion of the Supreme Court of

ELEED THROUGH= POOR COPY

Missouri in the instant case, as being one where the matters

of complaint were decided against appellants by a court

of competent jurisdiction.

In many places in the Fifth Amended Petition, ap-

pellants make purported quotations from Moffett v. Mof-

fett, 131 Kansas 582, Clark v. Moffett, 136 Kan. 711, and

many other Kansas decisions. Examination of the Fifth

Amended Petition will show in many instances the inclusion

of asterisks in these quotations. We have reviewed all of

these quoted excerpts in the light of the omission of recitals

indicated by asterisks, and respectfully submit that in many

instances these omissions and elisions result in false and

erroneous application of the quoted excerpts, and the wrest-

ing and stripping of certain parts from their context.

The stipulation for accounting hereinbefore referred to

on pages 56 and 66 of this part of this Statement, appears

in full in the Abstract of th: Record in the Howard Fee

case, on pages (*755, °756) and is in words and figures as

follows (omitting the signatures of parties other than the

plaintiffs) :

‘‘In the District Court of Harper County, Kansas

Grace Torrance Clark, Administratrix etc., et al. Plain-

tiffs v. Helen Moffett, et al. Defendants and Commerce

Trust Company, Executor ete. and R. O. Robbins,

Administrator with the will annexed of John Moffett,

deceased, Intervenors No. 7374.

SrrPuLaTIOn

‘‘We, the undersigned, being all of the parties, plain-

tiff, defendant and intervenors in the above entitled

cause hereby stipulate and agree that said cause may

be set down for a hearing on Wednesday, October 14th,

1931, before the court at 10:30 o’clock a. m. on said day

and further stipulate that in the event an accounting

should be ordered by the court herein the said parties

hereto hereby agree that further proceedings in said

cause shall go forward without delay, or at such time

as the court may order.

Grace Torrance Ciark Adma.

Loviss McGrew Morretr

Plfs.

By A. E. Watson their Atty.’’

The record in the Howard Fee case shows (°117, *118) :

‘se 6) 6* ~=and, thereupon the said defendant Helen

Moffett presented her motion for a preliminary judg-

ment for an accounting in this action together with a

stipulation on file in words and figures as follows,

to-wit:

(Here appear the recitals in the body of the above

stipulation.)

‘* And thereupon the Court after argument and state-

ments of counsel and being fully advised in the prem-

ises, does sustain said application and it is then and

there by the court ordered, adjudged and decreed that

all parties to this cause, plaintiffs, defendants and in-

tervenors be and they are hereby ordered to account

as to said Moffett Brothers partnership affairs, busi-

ness and property; and by virtue of the stipulation as

aforesaid the accounting is ordered to go forward

without delay and thereupon the court announced the

burden of proof to be upon the defendants and the

intervenors.’’

In the light of the foregoing, it seems to us that there is

no possible justification for the contentions made by the

appellants that the Missouri Supreme Court in its opinion

in the instant case, erroneously stated:

‘*Most if not all of these questions have been decided

adversely to appellants by courts of competent juris-

diction in suits brought by appellants or in which they

actively participated as defendants,”’

ELEED THROUGH POOR COPY

or erroneously stated that:

‘“'They have not only had their day in court, but their

months and years.”’

vil

Judicial Notice (a) This Court will take judicial notice

of its records in former cases companion to and interrelated

with the instant case, and growing out of transactions

pleaded in the instant case, where this Court has denied

certiorari on such former cases. (b) The Supreme Court

of Missouri in the instant case was entitled to take judicial

notice of its own records in former cases closely interwoven

with, companion to and interdependent with the instant

case and to take judicial notice of the public statutes and

judicial decisions of the State of Kansas pleaded in the

instant action. (c) The Circuit Court of Jackson County,

Missouri, in the instant case was entitled to take judicial

notice of all prior proceedings of said Circuit Court and

of any division thereof in the instant case, all of the divisions

thereof constituting but a single court. (Appellants’ As-

signment of Errors, Nos. 1 to 13 both inclusive, 25, 27, 28,

32, 35 and 36.)

(a) Matters of Which this Court Will Take Judicial Notice

Herem

It is incumbent upon the appellees to bring to the atten-

tion of this court the matters of which they desire judicial

notice to be taken. Shapleigh v. Mier, 299 U. S. 468, 81

L. Ed. 355, 57 S. Ct. 261. We therefore solicit the attention

of the court to its records in the following cases as appel-

lants are seeking in the instant case to avoid the effects of

the adverse judgments in each thereof :

1. Helen Moffett, Appellee, v. Thomas S. Moffett

et al., Appellants, 131 Kan. 546, certiorari denied by

this court March 9, 1931, 283 U. S. 826, 75 L. Ed. 1440,

51 S. Ct. Rep. 351.

2. Grace Torrance Clark, et al., Appellants, v. Helen

Moffett, et al., Appellees, 136 Kan. 711, 18 Pac. (2d)

555, certiorari denied by this court October 9, 1933,

290 U. S. 642, 78 L. Ed. 558, 54 S. Ct. Rep. 61, Leave

to file petition for rehearing denied Dec. 11, 1933, 290

U. S. 602, 78 L. Ed. 528, 54 S. Ct. 227.

3. Louise McGrew Moffett, individually and as execu-

tri, etc., Appellants, v. R. O. Robbins, Admr. etc.,

Appellees, 81 F. (2d) 431, affirming 14 Fed. Supp. 602,

certiorari denied by this court May 18, 1936, 298 U. §.

675, 80 L. Ed. 1397.

At appropriate places, we have referred to and set out

the respective Assignments of Error made in the applica-

tions to this court for certorari in each of the above cases,

showing the contentions made on this appeal which have

been heretofore presented to this court in each of the former

cases.

In U. S. v. Pink, 315 U. S. 203, 86 L. Ed. 796, 62 S. Ct. 552,

this court, through Mr. Justice Douglas, held that this

court will take such notice of a foreign law as the state court

whose judgment is under review could have taken and that

where it was contended the complaint and the defense were

substantially the same in the instant case as in a former

one, where the judgment was affirmed in the United States

Supreme Court and the former case was not res judicata

since respondent was not a party thereto, that the United

States Supreme Court would take judicial notice of the

record in the former case, including the evidence contained

in the record. As to the latter poiat, the court said; 315

U.S. 1. ¢. 216, 86 L. Ed. 1. ¢. 810, 811:

‘*The upshot of the matter is that we now reach the

issues in Moscow F. Ins. Co. Case in so far as they are

ELEED THROUGH= POOR COPY

embraced in the pleadings in this case. And there is

no reason why we cannot take judicial aotice of the

record in this Court of the Moscow F. Irs. Co. Case.

Bienville Water Supply Co. v. Mobile, 186 U. S. 212,

217, 46 L. Ed. 1132, 1134, 22 S. Ct. 820; Dimmick v.

Tompkins, 194 U. S. 540, 548, 48 L. Ed. 1110, 1113, 24

S. Ct. 780; Freshman v. Atkins, 269 U. S. 121, 124, 70

L. Ed. 193, 195, 46 S. Ct. 41, 6 Am. Bankr. Rep. (N. 8S.)

744. eo e eo

‘‘We do not stop to review all the evidence in the

voluminous record of the Moscow F. Ins. Co. Case

bearing on the question of the extraterritorial effect

of the Russian decrees of nationalization, except to

note that the expert testimony tendered by the United

States gave great credence to its position.’’

As to judicial notice of foreign law which the Supreme

Court of Missouri could take, and consequently which this

court can take under U.S. v. Pink, supra, Sec. 958 R. 8. Mo.

1939. ads:

‘‘In every action or proceeding wherein the law of

another state of the United States of America is

pleaded, the courts of this state shall take judicial

notice of the public statutes and judicial decisions of

said state.’’

The Fifth Amended petition ruled upon in the instant

case pleads Clark v. Moffett, 136 Kan. 711 (164, 230 and

elsewhere). It pleads the companion cases of Clark v.

Andrews, 136 Kan. 23 (238, 239), and Moffett v. Moffett, 131

Kan. 582 (231). It pleads a multitude of statutes and other

decisions of the State of Kansas. (166, 167, 179, 180, 186,

187 to 193, 200 to 208, 236, 239, 240, 245, 250, among others.)

The Fifth Amended Petition also pleads by date of rendi-

tion and alleged points covered, the decision of the Supreme

Court of Missouri in the Howard Fee case, 345 Mo. 741, 137

8. W. 2,507. This is mentioned here as an aside, because it

clearly brings the Howard Fee case opinion before this

court.

In Corbett v. Terminal Railroad Assn., 336 Mo. 972, |. «

980, 82 S. W. 2, 97, the Supreme Court of Missouri held with

reference to Sec. 958, R. S. Mo. 1939 that:

‘*We readily agree that under our statute the proper

pleading of the law of another state requires our courts

to take judicial notice not only of the law itself, such as

a statute of such state, but also of the judicial decisions

of such state interpreting or construing such law or

statute. (Ramey v. Railroad, 323 Mo. 662, 21 S. W. 2d

873, 877, Menard v. Goltra, 328 Mo. 368, 40 S. W. 2d

1053.)’’

This Court takes judicial notice of its own records in a

pending cause and also of records in cases formerly lodged

in that court whether they be companion or interrelated

proceedings or those formerly had therein by one of the

parties to the pending case in which judicial notice of the

record of the former case is taken.

This is true as to the record of denial by the Supreme

Court of certiorari at a previous stage in the same case.

Aspen Mfg. & Smelting Co. v. Billings, 150 U.S. 31, 37 L. Ed.

986; and it is also true as to denial of certiorari by the

United States Supreme Court in another case growing out

of the same general subject matter or controversy. Friezler

v. Boatmen’s Bank, 212 U. 8. 364, 53 L. Ed. 551, 1. ¢. 556, 557.

Under the former practice, where in a murder case the

United States Supreme Court had dismissed a writ of error

to the highest court of the State for lack of Federal juris-

diction, on a subsequent appeal from an order of the United

States Circuit Court denying habeas corpus this court not

only took judicial notice of its denial of a writ of error in

the murder case but further assumed that in the application

for such writ of error no point ‘‘on which the jurisdiction

might have been sustained was overlooked,’’ 42 L. Ed. |. «.

409.

ELEED THROUGH= POOR COPY

In DeBearn v. Safe Deposit & T. Co., 233 U. 8. 24, 58

L. Ed. 833, an appeal from the U. 8. District Court to review

a decree sustaining a demurrer to and dismissing a bill, the

judgment being that the cause be dismissed for want of Fed-

eral jurisdiction, the first syllabus in 58 L. Ed. reads:

‘*A direct appeal from a Federal district court to the

Supreme Court may not be maintained on the theory

that rights under the Federal Constitution were in-

volved, where the supposed constitutional questions

have already been twice decided by the Supreme Court

to be so wanting in merit as not to afford ground for the

exercise of jurisdiction to review the judgments of a

state court of last resort.’’ (Emphasis added.)

The above seems very pertinent to the instant case. The

opinion by Chief Justice White, holds:

‘* ‘We take judicial notice of our records, azd, if not

res judicata, we may, on the principle of stare decisis,

rightfully examine and consider the decision in the

former case as affecting the consideration of this ;’ and

again, as further declared in Dimmick v. Tompkins, 194

U. 8. 540, 548, 48 L. Ed. 1110, 1113, 24 Sup. Ct. Rep. 780;

‘The court has the right to examine its own records and

take judicial notice thereof in regard to proceedings

formerly had therein by one of the parties to the pro-

ceedings now before it.’ Availing of this power and

making reference to the records of this court, it appears

that the controversy as to the validity of the attach

ments with which the appeal before us is concerned has,

on three different occasions, been here considered.”’

(Emphasis added.)

In Bienvilie Water Supply Co. v. Mobile, 186 U.S. 212, 46

L. Ed. 1132, an appeal from the U. S. Circuit Court the fol-

lowing is from the opinion by Mr. Justice Brewer:

‘‘It appears that the decree in the other suit was ren-

dered in the circuit and affirmed in this court about

seven months before the decision of the present case in

the circuit court. As against this, it may be said that

the decree in the other suit was neither pleaded nor

proved, and no question of res judicata can be con-

sidered unless the earlier decision is formally presented

on the hearing of the later case. This, doubtless, is

technically true, but we take judicial notice of our own

records, and, if not res judicata, we may, on the princi-

ple of stare decisis, rightfully examine and consider

the decision im the former case as affecting the con

sideration in this.’’ (Emphasis added.)

(b) Judicial Notice by Missouri Supreme Court of Its Own

Records in Other Cases

The Missouri Supreme Court will take judicial notice of

the record before it in other cases when the public interest

in ascertaining the truth is of paramount importance ; where

the cases are so interwoven or interdependent as to invoke

a rule of judicial notice, and this is true even as to taking

notice in one division, of the stricken portion of an answer

in the record of the former suit in the other division of the

court. In Sabol v. St. Lowis Cooperage Co. Mo. Div. 2, 31

S. W. 2, 1041, L. ¢. 1043, it was held:

‘*The errors assigned by plaintiff to the srbsequent

action of the trial court in sustaining defendant's objec-

tion to the introduction of evidence must be determined

upon the pleadings as they were before that court, after

part of defendant’s answer had been stricken. It does

not follow, however, that we are precluded from con-

sidering the opinion of Division 1, because that part

of defendant’s answer embodying the same was stricken

out. That opinion is part of the records of this court,

of which we take judicial notice. 23 C. J. 110 #1918;

Keaton v. Jurndt, 259 Mo. 179, 168 S. W. 734.’’

And in Knorp v. Thompson, 352 Mo. 44, I. c. 52, 175 S. W.

2, 889, 1. c. 894, it is said:

“Of course a court can judicially notice its own ree-

ords, and courts, when justice requires, should and do,

ELEED THROUGH= POOR COPY

—

in deciding a case, consider the records of other cases,

as‘* °* * where the interests of the public in ascer-

taining the truth are of paramount importance, as also

in cases where the court is seeking to determine what is

a reasonable exercise of its discretion, or whether the

present proceeding is merely a moot one. And ‘there

may be cases so closely interwoven, or so clearly inter-

dependent as to invoke a rule of judicial notice in one

suit of the proceedings in another suit.’ 23 C. J., pp.

113-114; Thompson v. Scott, supra. See also 31 C. J.8.,

Evidence, sec. 50.’ ’’

Its Records in the Same Case

Judge Ridge, in ruling upon the Fifth Amended Petition,

properly took judicial notice of all prior proceedings and

rulings by his colleagues sitting in other divisions of the

same court.

A cireuit court of the State of Missouri must take judicial

notice of the state of the record and of all proceedings had

before it in the same litigation. Fears v. Riley, 148 Mo. 49,

L. ¢. 60, 49 S. W. 836.

In Pelz v. Bollinger, 180 Mo, 252 1. c. 262, the Supreme

Court said that the circuit court ‘‘was bound to take judicial

notice of all proceedings before it in the same litigation.”’

In State ex Rel. v. Landwehr, 332 Mo. 622, 1. c. 628, 60

§. W., 4, the Supreme Court of Missouri, en banc, held :

‘‘ Jurisdiction of circuit courts is fixed by law and not

by rules or orders of the court. There is but one circuit

court in the City of St. Louis, composed of eighteen

parts called divisions. (Goddard to use of Hyde v.

Delaney, 181 Mo. 564, 80 SW 886; In re Clark, 208 Mo.

121, 106 S. W. 990. There being but one circuit court

necessarily there is but one jurisdiction. * * * each

division of the court has all the jurisdiction of the court

of which it is a part, unless otherwise provided by law.”’

And in Case v. Smith, 215 Mo. App. 621, 1. ¢. 628, 257 8. W.

148, 1. c. 150, the Kansas City Court of Appeals held:

‘*The circuit court of Jackson county is one court,

though it has different divisions, which are separate

. only to the extent that where a case has been assigned to

and is pending in one division no other division has

jurisdiction thereover, and cannot have, until the case

has been duly transferred to such other division.”’

We appreciate that the denials of certiorari by this court

in the cases involved in litigation by the Moffetts cited at

the beginning of this point, do not have the conclusive effect

of general judgments; but in view

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.