I dissent from both the law and the facts of the case as stated and declared by my learned colleague, who wrote the majority opinion.
The majority opinion on page seven erroneously states that appellant's contentions as disclosed by his assignment of errors, argument and brief may be reduced to these: *Page 618
"1. The bond in suit is not the appeal bond that was filed by appellants in Gary Realty Co. v. Kelly et al., or, if so, it was never delivered so far as appellant here is concerned.
"2. The bond declared on, even if executed as alleged, does not conform to mandatory requirements of the Forcible Entry and Detainer Statute, consequently it is void; and
"3. The judgment with respect to which it is alleged that the bond operated as a supersedeas was void because rendered by a court without jurisdiction. Of these in order."
The real assignment of errors made in the case is, as will be seen by an examination of page eighteen of appellant's brief, as follows:
"1. The court erred in refusing to sustain defendant's demurrer, for the reason that there was no judgment rendered in the unlawful detainer proceeding by any court having jurisdiction to render the same and therefore defendant did not breach the pretended bond sued on.
"2. The court erred in refusing to sustain defendant's objection to the introduction of the bond for the reason that it was not the bond approved by the court.
"3. The court erred in permitting plaintiff to introduce the opinion of the Kansas City Court of Appeals in the matter of the overruling of the motion to quash the execution filed by Bonfils and Tammen, for the reason that said opinion was not competent evidence and at that time the opinion was being examined by the Supreme Court, by reason of a writ of certiorari.
"4. The court erred in permitting witnesses to testify in an effort to impeach, in a collateral proceeding, the records of the court in the matter of the approval of the bond sued on.
"5. The verdict and judgment is against both the law and the evidence, and is in direct violation of the Constitution of the United States as provided for in *Page 619 Article 14, Section 1, of the Amendment to the Constitution, which provides that no person shall be deprived of property without due process of law, and violates the provisions of the Constitution of the State of Missouri, Article 2, Section 30, which provides that no person shall be deprived of life, liberty or property without due process of law, for the record in this case shows that there never was any judgment lawfully obtained against the defendants in the unlawful detainer suit on account of which this defendant is sought to be charged in this action and the record shows that this defendant never had a fair and impartial trial as provided for under the said provisions of the Constitution of the United States and the State of Missouri.
"6. There never having been any valid judgment obtained against the defendants in the unlawful detainer suit out of which the pretended bond sued on herein was signed, and there having been no breach of said pretended bond, the verdict and the judgment herein violates the provisions of the Constitution of the United States and the Constitution of the State of Missouri specifically mentioned under Paragraph 5 just set out.
"7. The verdict and judgment is contrary to the terms of the pretended bond, not in accordance with such terms, and not supported by the terms set out therein, and by reason thereof, said verdict and judgment is in direct conflict with the very terms of the contract upon which plaintiff seeks to recover.
"8. The record of the court as introduced in evidence by the defendant, shows that the bond sued on is not the bond filed and approved, and the court erred in permitting the bond offered as the bond filed in the case to be introduced as evidence, in the face of the record showing that it is not the bond filed and approved by the court."
In the very nature of things this dissenting opinion is more or less patch-work, caused by the fact that it was originally written as a dissent to the majority opinion *Page 620 of the court written by Judge RAGLAND, while the caseVoid was pending in Division One of this court, at theJudgment. October term thereof for the year 1923. Since that time the case has been transferred to Court in Banc and re-briefed, argued and submitted to this court in banc. The briefs and arguments in Court in Banc are voluminous, changing, as I see them, practically all the issues of fact and propositions of law that were submitted to the court in Division, yet the learned judge who wrote the majority opinion in Division, so far, has clung to the divisional opinion as his opinion in the case in Court in Banc, consequently I must answer the majority opinion delivered in Division as written under the issues of fact and propositions of law as there presented to the court. I must also answer the same opinion in the light of the new issues of fact and propositions of law presented to Court in Banc by the new briefs and arguments filed by counsel in the case in Court in Banc. Otherwise I might leave some of the legal questions presented by some of the briefs unanswered; I therefore, as stated in the beginning, repeat that this dissent must be somewhat patchwork in character but complete in scope and unanswerable in its attacks upon the majority opinion.
This suit is bottomed upon an appeal bond given in a case appealed from a void judgment rendered on the 18th of March, 1916, in an unlawful detainer suit. (I say "void judgment" because it was so held by Court in Banc, 247 S.W. 187 and 1009, which has not been changed, modified or overruled in any manner whatever, although four or five terms of this court have lapsed since the original decision in the case was handed down, which renders it impossible to be changed, modified or overruled. This phase of the case is more fully considered in Paragraph II of this opinion which is referred to as being conclusive upon this point).
As previously stated, and it is conceded by both parties, this suit was an unlawful detainer proceeding, instituted *Page 621 before a justice of the peace of Kaw Township, Jackson County, Missouri, which by certiorari was removed to the Circuit Court of Jackson County, where it was tried before the Hon. THOMAS B. BUCKNER, Judge of Division 1 of that court, without a jury. The trial thereof resulted in the rendition of this judgment:
"Wherefore, it is hereby ordered, considered and adjudged that the complainant, Gary Realty Company, have restitution of the said premises found by the court to have been unlawfully detained, and recover of the defendants the sum of $4000, being double the sum assessed and found by the court for complainant's damages; and that complainant also have and recover from defendants at the rate of $1300 double the said sum found by the court, per month, for rents and profits, from this 18th day of March, 1916, until restitution of said premises to plaintiff be made, together with the costs of this suit."
The judgment on appeal was taken to Division Two of this court.
I deem it of paramount importance to call attention to the fact that that judgment states that the court found that the premises had been unlawfully detained by the defendants, and ordered restitution of the same to be made to the plaintiff, Gary Realty Company, and to recover of the defendants on account of theunlawful detainer $4000, double the sum assessed and found by the court for plaintiff's damages; and plaintiff also have and recover from defendants at the rate of $1300, double the said sum found by the court, per month for rents and profits of the premises until restitution of said premises be made to the Gary Realty Company.
It should also be noted that the circuit court in said unlawful detainer suit found and fixed the rental value of said premises at $650 per month and doubled that sum, making $1300 per month, as the penalty, for so long as the defendants might retain saidunlawful possession of the premises. *Page 622
Now it was in this case, State ex rel. Kelly v. Trimble, of the Kansas City Court of Appeals, 247 S.W. 187 and 1009 supra, thatcertiorari was brought to quash the record — in that very same case of unlawful detainer suit — because neither the justice of the peace of Kaw Township, the Circuit Court of Jackson County, nor Division Two of this court, ever acquired jurisdiction of the subject-matter of that action, and therefore it was claimed that the judgment was absolutely void and of no force or effect in law or equity. In that case all the pleadings, facts and legal questions presented are deraigned and set forth in full, which we refer to again, 247 S.W. 187 and 1009, in order to avoid the necessity of prolonging this opinion by quoting it herein.
In disposing of that case we finally said (on page 193, 247 S.W.): "(7) According to the law announced in the foregoing authorities, in our opinion there can be no doubt but what the judgment of the Court of Appeals is a nullity and should be quashed, and the record of that court is accordingly quashed, and held for naught."
This holding of this court in that case clearly quashed thejudgment and record of the Kansas City Court of Appeals and not simply that part of the judgment which awarded the premises to the plaintiff, the Gary Realty Company, but the entire judgment, which included the judgment for double rents and profits and damages for the unlawful withholding the premises, and if the defendants were not unlawfully withholding the premises, then how could the plaintiffs recover rents, damages or profits in the case? Double rents, damages and penalties are necessarily incidental to the unlawful withholding of the premises, and if the premises were not unlawfully withheld, which the opinion in the Kelly v. Thimble, 247 S.W. 187 and 1009, supra, holds, and which counsel for plaintiff a number of times conceded in their briefs and arguments to be so, then how can plaintiff here collect double rents and damages? *Page 623
In fact, the unlawful detainer statute, Section 3012, Revised Statutes 1919, proceeds only upon the theory that the plaintiff is to have rents, profits and costs, etc., if the court finds that the defendant is holding the premises unlawfully. Likewise the statute which prescribes the form of the execution for the plaintiff, Section 3013, Revised Statutes 1919, provides for the restitution of the premises and the collection of the rents, profits and damages for the unlawful withholding of the same from the plaintiff. Both sections show conclusively that no rents, profits or damages are to be recovered except those incidental to the unlawful withholding of the premises from the plaintiff.
In this connection if we turn to and read the judgment of the Jackson County Circuit Court, which is copied here verbatim in the first part of this dissenting opinion, it will be seen that it was drawn and rendered in almost perfect conformity with the letter and spirit of both of the statutes last cited, prescribing the form of the judgment and execution in unlawful detainer suits, and that is, the judgment rendered in the case from which the appeal bond in this case was executed by Mr. Swinney, and the condition of the bond was that the appeal would be affirmed, otherwise the bond should be null and void; and as previously stated this court held in the Kelly v. Trimble case, supra, page 193, that "the judgment of the Court of Appeals is a nullity and should be quashed," which was accordingly done.
Notwithstanding that judgment still stands in full force and effect without change or modification, and notwithstanding some four or five terms of this court have fully expired since its rendition, yet in the face of Section I of Article XIV of the amendments of the Constitution of the United States, the majority opinion in this case is trying to hold the bondsman, Mr. Swinney, on the appeal bond liable therein, notwithstanding the judgment rendered therein was declared null and void by this court on December 12, 1922. *Page 624
In other words the majority opinion is trying to hold the bondsman liable on the appeal bond when the judgment appealed from has been declared by this court to be null and void, and thereby wiped out of existence the judgment appealed from, which was in favor of the plaintiff.
It seems to me, that Gary Realty Company, the plaintiff in this case, can no more enforce the judgment against the defendant, Swinney, the security on the appeal bond, than it could enforce the judgment itself against Kelly et al., the principals, which has been declared void by this court and quashed as before shown. This proposition has been fully considered in Paragraph III of this opinion.
The judgment of Court en Banc in the case of State ex rel. Kelly v. Trimble, No. 22942, is conclusive, and even though the reasoning of the opinion may be overruled, that judgment is binding on the parties and their privies, and this court cannot review, reverse or annul that final decree. [Southern Pac. Ry. v. United States, 183 U.S. 519, l.c. 528; New Orleans v. Bank,167 U.S. 371; Mercantile Bank v. Hubbard, 105 F. 809; United States Drainage Co. v. Medford, 274 Fed. l.c. 559; Richardson v. Ainsa,218 U.S. 289; United States v. Camou, 184 U.S. l.c. 574; Toledo Scale Co. v. Computing Scale Co., 281 F. 488; Eastern Bldg. Co. v. Welling, 116 F. 100; Lowe v. Johnson, 259 S.W. 1004; Winkelman v. Winkelman, 142 N.E. 173; Hensley v. Conard,226 P. 54; College v. Fisher, 221 P. 715; Dudgeon v. Hackley, 182 S.W. 1004; Littick v. Means, 195 S.W. 729; Rodney v. Gibbs, 184 Mo. l.c. 11, 82 S.W. 187; Kansas City v. St. Louis Land Co., 169 S.W. l.c. 67; Wilson v. King's Lake D.D., 237 Mo. 39, 139 S.W. 137; Wilson v. King's Lake D.D., 165 S.W. 738; Watts v. Levee Dist., 145 S.W. 129, l.c. 136; State ex rel. Nolte v. Reynolds,223 S.W. 408; State v. Gochenour, 225 S.W. l.c. 691; Watertown v. Eastern Dakota Electric Co., 296 Fed. l.c. 835; Gillespie v. Wilson, 221 Pac. *Page 625 82; Ex parte Sibbald v. United States, 37 U.S. 488; Illinois v. Illinois Railway, 184 U.S. 77, l.c. 91; Fauntleroy v. Lum,210 U.S. 230.]
Where, pending an appeal or writ of error from a judgment, a suit is brought based on that judgment, the reversal of the first judgment wipes out the cause of action of the second suit, and it is the duty of the appellate court upon such reversal of the first judgment, to dismiss or reverse the second judgment. [Butler v. Eaton, 141 U.S. 240; Walz v. Agricultural Ins. Co., 282 Fed. l.c. 649; Dupont v. Richmond Guano Co., 297 F. 580; Morgan Co. v. Iron Co., 243 F. 149; Ballard v. Searls,130 U.S. 50; German Trust v. Plotke, 118 A. 508; Sherwood v. Greater Mammoth Vein Co., 189 N.W. 793.]
I. The first ground of my dissent is, the majority opinion holds that a recovery can be had upon the appeal bond given in the case of Gary Realty Company v. Kelly et al., for a breach of its condition to prosecute the appealAppeal Bond: successfully, when as a matter of fact theIncident of respondent has no judgment whatsoever againstVoid Judgment. said Kelly, Bonfils et al., the defendants in the case, in which the bond sued on was made and executed.
It is true that company procured a judgment against said Kelly et al., which was appealed by them. After many tortuous steps it reached the Kansas City Court of Appeals, which judgment was affirmed by the Court of Appeals. In that case the defendants, Kelly et al., sued out a writ of certiorari from this court to the Court of Appeals, and is reported in the 247 S.W. 187, and247 S.W. 1009, where this court in banc, quashed the record of that court and in doing so, on page 193, used this language:
"According to the law announced in the foregoing authorities, in our opinion there can be no doubt but what the judgment of the Court of Appeals is a nullity *Page 626 and should be quashed, and the record of that court is accordingly quashed and held for naught."
The only question discussed and decided in that case was that neither the justice of the peace, before whom the case was instituted, nor any of the various other courts through which the case passed, had any jurisdiction thereof, and consequently all the proceedings had in the case in all the courts through which it passed, including the judgments thereof, were absolutely null and void, and of no force or effect.
Three of the judges of this court concurred in that opinion intoto, two in the result, and two dissented, but notwithstanding the two dissents, the decision in that case adjudged that all the proceedings had in all of the courts through which the case passed, including the judgments thereof, were null and void; that of course included the bond sued on, because it was a part of the record in the case, and was purely incidental to the judgment appealed from, and when the judgment so appealed from was declared void and of no force or effect, the bond upon which the judgment was based necessarily fell and became null and void with it. This is too clear for argument, except to state that I have made quite an exhaustive search of the authorities, and have found no text-writer or adjudged case that even intimates that you can recover upon an appeal bond, where there is no judgment in existence for which the bond was given to secure.
II. The second ground of my objection to the majority opinion is, the fact that the decision of this court in the case of Kelly et al. v. Trimble et al., supra, was rendered on December 12, 1922, during the October term of that court, andFinality of since then there have been four full terms of thisJudgment. court which have elapsed without that judgment being attacked either directly or collaterally, which of course places the case beyond the pale of the jurisdiction of this or any *Page 627 other court, just as completely as if it had never been instituted in the first place, with possibly this one exception, a bill in equity might be brought in the circuit court attacking it directly for legal fraud, or some other equitable ground.
It is elementary that a court after it acquires jurisdiction of a case never loses it until final judgment is rendered (State v. Schierhoff, 103 Mo. 47), except, of course, where the court's jurisdiction is extended by statutory enactment for the purpose of passing upon motions, bill of exceptions, etc., and a party over whom the court has obtained jurisdiction must take notice of all proceedings until final judgment is rendered, but after final judgment he is not regarded as being in court, and should be notified of any subsequent matters affecting his rights. [Roberts v. St. Louis Merchants' Land Imp. Co., 126 Mo. 460, l.c. 469.] And there is no pretense that Kelly et al., were or could have been notified of any subsequent proceeding in the case against them after the term of this court at which the final judgment in the case of State ex rel. v. Trimble was rendered on December 12, 1922. That being unquestionably true, it necessarily follows that no notice, or collateral suit, could affect their rights or the judgment with all its incidents rendered in that case.
Along the same line of thought is the case of Danforth v. Lowe,53 Mo. 217. There this court held that, after the term at which final judgment in a cause is rendered has elapsed, the court has no power to re-instate the cause upon the docket, or to take any further steps. That being true, how much less could this court or any other court acquire jurisdiction over the bond sued on in the Swinney case, the case at bar, which is nothing more or less than a collateral proceeding growing out of the Gary-Kelly case, as previously shown? [Butler v. Eaton, 141 U.S. 240; Illinois v. Illinois Ry. Co., 184 U.S. 77, l.c. 91.] The same ruling was announced by this court in State ex rel. v. Ellison, 267 Mo. 321. *Page 628
If such a thing should be attempted, it would clearly violate the due-process clauses of both the State and Federal constitutions.
III. My third reason for dissenting is, that this court in the case of Kelly v. Trimble, 247 S.W. supra, held that the justice of the peace before whom the unlawful detainer suit of the Gary Realty Company v. Empress Theatre Company et al.Judgment never acquired jurisdiction of the persons of theWithout defendants or the subject-matter of the suit, andJurisdiction. that none of the courts to which the case was appealed, or in which it was otherwise lodged, namely, the circuit court, the Kansas City Court of Appeals, and Division Two of this court, acquired jurisdiction thereof, and consequently we quashed both the record and judgments of those courts. And as before stated, that judgment never having been appealed from, it is too late to question its validity and binding effect in this case.
No judicial power on earth can at this late day set aside, modify or quash that judgment without impugning the due-process clauses of both the State and Federal constitutions. While at some future time this court, if it ever sees fit to do so, may overrule the opinion in that case, as a precedent, or as a case not to be followed in the future, but never, in so far as to its binding force and controlling effects in the case of Kelly et al. v. Trimble. Such conduct would be coram non judice. See following cases before cited: State v. Schierhoff, 103 Mo. 47; Roberts v. St. Louis Inv. Co., 126 Mo. 460; Danforth v. Lowe,53 Mo. 217; State ex rel. v. Ellison, 267 Mo. 321; State ex rel. v. Hall, 296 Mo. 201.
It necessarily follows, it seems to me, that the Gary Realty Company, the plaintiff in this case, can no more enforce a judgment against the defendant Swinney, the security on the appeal bond, than it could enforce the judgment itself against Kelly et al., which has been quashed and declared void, for which the appeal bond *Page 629 was given. In other words, by what process of reasoning can one reach the conclusion that the judgment appealed from is void and of no legal force or effect and non-enforcible against the principal, Kelly et al., and yet contend that the appeal bond given to secure the payment of that void judgment can be enforced, or collected, especially after that bond, which was a part of the record in the case of Gary Realty Company v. Kelly et al., as well as the judgment based upon it which was quashed, was declared null and void? I must confess that I cannot follow such reasoning, and I know that there is no authority on either side of the Atlantic which lends the least particle of support to it. In fact, during all of my researches devoted to this question, I have never found where such a proposition was ever contended for. In such a case, if the defendant, Swinney, is liable in this case, then the security in every appeal bond will be held liable, regardless of the fact that the appellant may have been successful in his appeal. I do not see how any fair-minded, reasonable man can reach any such conclusions.
IV. I again dissent from the majority opinion for the reason that it re-considers the issues as made in the case of State ex rel. Kelly v. Trimble, 247 S.W. 187, supra, as to whether or not parties could in an unlawful detainer case enterStare Decisis: their appearance in the Circuit Court so as toConcurrence in give that court jurisdiction of the case, alsoResult. whether the unlawful detainer case was ever removed from the Justice Court to the Circuit Court, and attempts to reverve the decision of this court in banc rendered in the case of Kelly v. Trimble, 247 S.W. 187, supra, in this, a wholly collateral proceeding, and in so attempting it, uses this language:
"In any event, its holding that in an unlawful detainer action service of process on the defendant, or notice to him by publication, in the manner prescribed by *Page 630 the statute, is a requisite of jurisdiction as to subject-matter and cannot therefore be waived, by the voluntary appearance of the defendant, is so anomalous that it cannot be treated as a precedent."
The majority opinion, meaning, of course, that it will not be followed, then proceeded to dispose of the case in the direct face of that opinion. As I have stated before, and repeat it here, the decision of this court in banc, in the case of State ex rel. Kelly v. Trimble, 247 S.W. 187, supra, became the law ofthat case, and the term of court at which it was rendered having long ago lapsed, neither this court nor any other court on this earth can reverse, modify or quash it, in so far as that case is concerned, with two solitary exceptions, namely: first, the circuit court upon a new suit being filed directly assailing its validity for fraud, or for other equitable grounds in the procurement of that judgment, or, second, the Supreme Court of the United States, for some reason incomprehensible to me, and should the latter do so, it would clearly do violence to the clear letter and spirit of the due-process clause of the Constitution of the United States.
I do not want to be misunderstood. I do not say or contend that this court in banc cannot and may not, at any time it sees proper, overrule the case of State ex rel. Kelly v. Trimble, 247 S.W. 187, supra, as a precedent, and not to be followed as a precedent or as the law of this State in the future, because it has done more curious and unreasonable things in the past than that, but in my opinion it can never do that and follow the plain letter and spirit of the statutes governing the unlawful proceedings and the decisions of this court regarding the matter.
If this court wants to overrule the Kelly case, supra, I can suggest no stronger reason for so doing than to follow the suggestions filed in this case by thirty-five or forty able members of the bar at Kansas City, praying that it be overruled. *Page 631
The majority opinion says that the opinion in the Kelly case was not concurred in by a majority of the court, which is a mistake, for three of the judges concurred in full and two in the result, and it is with the result that we are interested. These five judges concurring in the result (that the opinion of the Court of Appeals should be quashed for the reason that the circuit court never acquired jurisdiction of the unlawful detainer case) and while the judge writing the opinion based his opinion on one of the several grounds advanced, which opinion was concurred in by two other judges, five judges concurred in the result, which made the result or judgment of Court in Banc final, and that judgment divested the circuit court of jurisdiction to hear the original unlawful detainer case and said case is still in the justice court of Jackson County, Missouri.
The Supreme Court held in the case of State ex rel. Nolte v. Reynolds, 223 S.W. 408, that while some of the judges of the court may dissent from the opinion as written by one judge, the judgment of the case is the result of the vote of the majority of the judges and that judgment is the law of the case and cannot be subsequently set aside or disregarded in later appeals.
The mere fact that the opinion of this court is concurred in in the result only by a majority of the judges, renders it no less the decision of the court, and just as binding as if concurred in in full by all of them. While on this subject I recall to mind the case of James L. Tipton v. Barnard Leas Manufacturing Co. et al., decided by Court in Banc, 302 Mo. 162, where the majority opinion was concurred in by GRAVES, DAVID E. BLAIR and WALKER, JJ., and the writer of the majority opinion in this case, concurred in the result; WOODSON, C.J., JAMES T. BLAIR and WHITE, JJ., dissented, yet no one has ever suggested that the majority opinion in that case was not the decision of the court, because the carrying vote agreed only in the result. The State and Federal reports are full of such cases; all concede their binding force and effect. *Page 632
No divisional opinion, and in fact no opinion of Court in Banc, can revive or re-instate jurisdiction of the Circuit Court of Jackson County, Missouri, over that case. There may later be a different construction put on the section of the unlawful-detainer statute regarding the removal of cases from the justice court to the circuit court, but that decision will not be retroactive, but prospective only, as held by the Supreme Court in the case of Klocke v. Klocke, 208 S.W. l.c. 827.
V. My final reason for dissenting is, if I correctly understand the majority opinion, and I am not sure that I do, yet the effect of the opinion covers the proposition I have inAppeal Bond: mind, because according to the record in the case,Suit Pending no judgment could be rendered on the appeal bond inAppeal. suit until after the case it was filed in was finally disposed of in favor of the obligees on the bond.
Counsel for appellants objected to the introduction in evidence of the appeal bond sued on in this case for the reason that the case appealed from, at the time of the trial in the circuit court, and at the time the bond was offered in evidence, had not been finally adjudicated against the appellants in this court where it was still pending, and which was subsequently decided in favor of the appellants by this court in banc in the case of State ex rel. Kelly v. Trimble, 247 S.W. 187, and the judgment and the entire record in the cause were quashed, which wholly destroyed all liability of the obligors on the bond, becausetheir liability was only conditional and was never to become absolute, except on condition the appeal should be affirmed, which has not been done, and never can be on account of the decision of this Court in Banc in the case of State ex rel. Kelly v. Trimble, 247 S.W. 187.
Since writing the foregoing paragraph, my attention has been called to the case holding that where pending an appeal or writ of error from a judgment a suit *Page 633 is brought based on that judgment, the reversal of the first judgment wipes out the cause of action of the second suit, and it is the duty of the appellate court upon such reversal of the first judgment to dismiss or reverse the second judgment. [Butler v. Eaton, 141 U.S. 240.]
For the reasons stated I dissent from the entire opinion.Graves, C.J., concurs herein.