ON MOTION FOR REHEARING. The respondent herein has filed a motion for rehearing. Motions for rehearing in this court, as applied to cases wherein the statutory right of appeal has been given, serves two purposes. By the motion we are informed of matters of claimed error and contention of conflict with opinions of the Supreme Court. This to the end of uniformity of law. If the motion be overruled, it becomes the basis of application for certiorari in the Supreme Court. The matter of Habeas Corpus Ad Subjiciendum, herein involved, is a writ of right which the sovereign people have reserved and no delegation of power by the sovereign people to suspend this writ or to interfere with the right reserved, has been delegated to the legislative or judicial branches of government. The sovereign people have, however, delegated to constitutional courts, inferior and superior and to the judges thereof, the concurrent duty of enforcing the right.
In appellate cases the judgment and the execution thereof is suspended. Ten days are given for filing of motion for rehearing; thereafter, *Page 1216 this motion is taken up for consideration in council, and, if overruled, thirty days are given for application for certiorari which must thereafter be considered in the Supreme Court, and if granted, our record is certified to that court for its action thereon, and if the Supreme Court considers our opinion is in conflict, our opinion is quashed and cause remanded for rehearing. If not in conflict, the Supreme Court quashes its own writ and in that event the judgment of this court becomes final and subject to execution. It therefore happens that not only weeks and months, but possibly a year or more of delay before judgment of this court, in matters wherein an appeal lies, is effective and in cases of our opinion being upheld, not effective, or subject to execution until the processes peculiar to appeal cases have expired.
The application of the processes in the matter of the statutory right of appeal, if applied to matters in habeas corpus, would entirely nullify the right of the writ and render the matters therein moot, in that citizens would have been restrained of their liberty the full time of their incarceration under unlawful procedure and would permit indefinite incarceration wherein no due process of law had been had. In other words, the reserved right of the sovereign people would be nullified and the right suspended.
The fact that habeas corpus has been declared a proper remedy in determination of custody of infants does not delegate to the judiciary the right to destroy the prerogative of the writ as to finality, self-execution and res judicata. [Weir v. Marley,99 Mo. 484.]
This court had jurisdiction of the parties and subject-matter and reached a unanimous conclusion on the merits. That judgment was final and conclusive on the merits and its provisions executed and carried out before the motion for rehearing was lodged with the clerk of this court. Such a motion serves no lawful purpose at this time, and has no proper place in this proceeding.
We do not mean to say the Supreme Court cannot review the record as to jurisdictional matters and errors appearing on the face of the record, but such must be reached by an original proceeding of certiorari in said court and not by the usual proceeding followed in an appealable case.
For cases limiting the scope of inquiry by the Supreme Court oncertiorari in habeas corpus proceedings, see State ex rel. v. Westhues, 315 Mo. 672; State ex rel. v. Skinker, 324 Mo. 955; State ex rel. v. Wurdeman, 254 Mo. 561; State ex rel. v. Simmons,112 Mo. App. 535. It follows that said motion for rehearing is stricken. Shain, P.J., and Cave, J., concur; Bland, J., dissents as to striking the motion and votes to overrule the motion for rehearing. *Page 1217