I concur in the result reached by the principal opinion and in all that is said therein except the following:
"Since the respondents seek to set aside the judgment of the St. Louis Court of Appeals, they are, from a practical standpoint, in the shoes of an ordinary appellant in this court. They have failed to brief the main point on which they rely for a reversal of the St. Louis Court of Appeals' holding. However, we will not dismiss the appeal for failure to comply with our rule 1.08 because of the public interest in this procedural question."
My view is that when a case is transferred from a court of appeals to this court the parties retain the same positions, as appellant and respondent, that they occupied in the court of appeals. Further, that, upon such transfer for any reason, failure to file additional briefs in this court is not a violation of our rule 1.08 and is not a ground for dismissal of the appeal.
Our rule 2.06, relating to such transfers, in part, reads as follows:
". . . Briefs filed in the Court of Appeals shall be filed in the Supreme Court, and no new briefs need be prepared, but parties may file additional briefs if they desire to do so. . . . *Page 763
"Any case coming to the Supreme Court after having been briefed on the merits in, and decided by, a court of appeals will be finally determined by the Supreme Court the same as on original appeal, whether such case comes to it by certification, transfer or certiorari. For the purpose of filing additional briefs, if any, and for oral argument, the parties shall retain the same position as appellant and respondent as in the Court of Appeals. If additional briefs are filed, the time for service and filing thereof shall be governed by rule 1.09."